An ethnographic view of legal entanglements on the Salish Sea borderlands.
This work falls within the rubric of "law and society" research that, instead of featuring case law or treaty and constitutional arguments, or viewing a legal system as contained within the courtroom, examines the interactions of individuals or communities with representatives of the state and its legal systems, often low-level, and as seen from the ground up. This approach emphasizes the ways in which meanings become attached to law, how the legal regimes are contested and transformed, and the legal "consciousness" of everyday people. (1) I make this argument within the tradition of legal pluralism, although I do not regard the legal orders I describe here as on an equal footing (2) and I focus on the extension of Indigenous law into unexamined and unlikely corners. My approach is anthropological and ethnographic and follows on from my own studies regarding Coast Salish political life and legal orders since the 1970s. This research has been directly linked to tribal and band research interests, at the invitation of leadership, and sometimes directed towards legal venues. (3) This work follows the now well-established anthropological practice of working collaboratively with communities on issues selected by communities themselves.
The examples I present show the strength of the retention of Coast Salish ideas of law by members of the communities, the vehemence with which Coast Salish people believe these laws are still applicable, and the imaginative ways they attempt to integrate their historical legal concepts into the law of the dominant society.
The international border between the United States and Canada has been "hardened" with vastly increased surveillance practices since the catastrophic events of 9/11, but remains contested and permeable in unexpected ways. Now, creative Coast Salish leaders and rank-and-file community members are drawing connections between their rights and obligations within their own law and those of the nations, Canada and the United States, within which they reside. Some of these efforts are merely symbolic but are still reflective of historic Aboriginal law. It is significant that they are not merely attempting to find their way through Canadian national or provincial law, or US federal or state law. Rather, they are creating a new legal path, which takes seriously their own understandings and practices.
There is good reason for these developments. As Christie notes: "While some experimentation in living is both inevitable and worthwhile, within Aboriginal societies the broad strokes of how to live the good life have been worked out." (4) Beyond this, I show the still limited ability of mainstream legal orders to "hear" the ideas of the Indigenous world (5) and the occasional ways in which it does.
The legal orders that sometimes contend for jurisdiction include the systems of law of the Coast Salish peoples themselves, the original peoples of the Puget Sound, Gulf of Georgia, the lower Fraser River, and portions of Vancouver Island, all regions that are contained within what I am calling borderlands. Coast Salish laws are both historic and codified in recent times. What is commonly called customary law, I wish to consider as historic law because "customary" supposes a timeless, unchanging order, and, further, to place law, portions of which have survived the colonizing processes, within history presumes movement and change during the difficult time since the arrival of settlers. On the US side of the border, tribal code has been enacted by present-day federally recognized tribes and acted upon in tribal courts and inter-tribal appeals courts. On the Canadian side, tribal councils have created some legal apparatus, such as sentencing circles, in conjunction with Canada, and the First Nations Court in New Westminster. This is not tribally run nor tribally or Coast Salish specific. (6)
These three bodies of Coast Salish law overlap to some extent, particularly because the formal bodies, tribal code committees, composed of community members and legal advisors (created in the early days after the establishment of the tribal courts) have attempted to incorporate historic legal understandings within the new code. (7) They have partially succeeded, both in the language of the code and in the creation of legal procedures that allow for historical practices such as inter-family feasting. (8) Another example is the effort to incorporate historic ideas of the constituent elements of social organization with group rights into tribal code: the Upper Skagit code, for example, regulates fishing by recognizing extended family rights to riverside camp areas. (9) But the US tribal codes created by Salish Sea tribes have not entirely succeeded in reproducing either the concepts or the practices.
COAST SALISH LAW
Historic Coast Salish law is largely unwritten, although Puget Sound tribes have encoded portions for use in their own tribal courts, as I have noted. Unwritten legal orders, however, are far from unfamiliar to legal historians and Coast Salish law has distinctive features that are recognizable to legal practitioners. (10) First, although historically there were no buildings dedicated solely to the legal order--court houses, jails, and so on--and there were no permanent personnel associated with law--bailiffs, police, lawyers, judges--there were locations in which legal affairs could be played out and particular high status people who could adjudicate between parties. Second, there were well-understood legal procedures--including inter-family conferencing, elders "panels", adjudication by neutral high status regional leaders, and even interpersonal song duels. Third, it was historically based on several principles, including non-interference with the rights of others, the role of elders and family leaders, respect for powerful (and potentially dangerous) spiritual beings, and privacy of spiritual identity. There was no state, and therefore no state involvement, and legal proceedings primarily involved families in relation to other families.
The historic legal order gave particular attention to issues of potential conflict--including control and management of resource areas, and the control and restriction of movement through one's territory and appropriate protocol for those travelling through. Law regulated rights to very important incorporeal prerogatives as well--including ancestral names, songs, and many other properties. And, the Coast Salish legal order employed sanctions for illegal behavior. This included compensation, exile, or in extreme cases, the right to take the life of someone poised to carry out further uncontrollable, destructive behavior. Coast Salish law, in fact, has much in common with the law of other small-scale societies, but with its own signature.
I do not intend a thorough discussion of historic Coast Salish law here. Nor do I wish to take up the debate about whether Aboriginal peoples of Canada had systems of law. (11) Rather, I point to the existence of a system that was historically understood throughout the Salish Sea and that was enacted in daily life. The Snuneymuxw tribal website puts it this way:
Our relationships throughout the Coast Salish world are governed by our own laws and protocols, which reflect values of recognition, respect, and honour. Through those laws and protocols, Snuneymuxw self-determination and Territorial sovereignty is respected throughout the Coast Salish world. (12)
My writing here follows from a series of studies over the last 25 years on the issue of borders and Indigenous peoples. (13) I employ participant observations with Coast Salish communities on both sides of the border since the 1970s, address issues brought to my attention by community members and leaders, and discuss the results of my research, which included interviews with border officials. My own border crossings provide another lens to observe borderlands legal apparatus in action. Participation as an expert witness, or observer in some interesting, but largely under-the-radar law cases that turn directly on how the borderlands are understood and acted on legally, provides yet another perspective.
Calling on their own law is not new to colonized Coast Salish peoples dealing with the mainstream legal system, (14) and in the current day the relationship to environmental issues in particular is well-established. For example, a writer on the West Coast Environment Law website notes:
On Saturday, July 7 2012 the Tsleil-Waututh Nation and Squamish Nation signed onto the Save the Fraser Declaration. In doing so, Tsleil-Waututh and Squamish joined more than 100 First Nations in asserting their own Indigenous Laws which effectively ban Tar Sands projects throughout their territories. (15)
THE HOZOMEEN GATHERING
What follows are examples of less well-known engagements with historic law in the contemporary period. I start with a small, quiet example. One manifestation of Coast Salish law arose at a gathering of members of various communities whose ancestors had crossed the Cascade Mountains (as they are called in the United States) and the Coastal Mountains (the Canadian name) at International Point in the Skagit Valley in September 2009. Event organizers, the Skagit Environmental Endowment Commission, invited Washington and BC Aboriginal people, archaeologists, anthropologists, and other interested people. The two-day "Gathering at Hozomeen" focused on the long history of Indigenous involvement in the Upper Skagit River Watershed, a region that straddles the international border.
The region has always been a borderland between rival groups whose members travelled through to access resources, and in particular, the unique and valuable flint rock at Hozomeen Mountain. The Hozomeen chert (a flint-like rock deposit) was surface quarried and used for projectile points and other tools, and appears in the archaeological record of places throughout the region, including both sides of the international border. (16) The area was a conflict zone well into the 19th century, and Upper Skagit tribal oral histories tell of violent conflict with Nlaka'pamux (previously called Thompson) people, who were thought to violate the protocols necessary to visit the region of the upper Skagit river and take game. (17)
These oral histories give a good sense of how features of Aboriginal law of the period can be characterized: passage of friends and relatives through the region was acceptable with notice and permission, but hunting without proper notice was certainly not. The punishment was reprisal in the form of attacks on hunting parties, with the heads of those killed put on stakes as a warning. The Upper Skagit oral histories indicate that the state of conflict with the Nlaka'pamux arose in response to protocol and hunting violations (from the Upper Skagit vantage point), not a general antipathy between peoples. Indeed, marriage between members of the group was not uncommon in the late 20th century, long after warfare between Aboriginal groups had ended, although accompanied by jokes about heads on stakes. (18)
The Gathering at Hozomeen was a curious event; many were aware that we were camping near the ancient quarry site (now underwater following the damming of the area to generate power for Seattle City Light and the creation of Ross Lake Dam) and that violent hostility characterized the region historically. The participants camped immediately next to the international border, indicated by the clear-cut of broad swaths of trees and markers on the trail leading from camp grounds on the US side and the Canadian side. With permission apparently granted by US authorities, represented by Park Rangers, participants enjoyed crossing back and forth, aware of the imposing hardened border at the official car crossings such as the Peace Arch at Blaine, Washington.
Elders from the various tribes and bands, including Swinomish, Upper Skagit, Nlaka'pamux, and others, made presentations. These elders, from communities all along the Skagit River valley from salt water to the mountains, uniformly spoke about named ancestors who crossed the pass, often to visit relatives. These talks foregrounded the rights and protocols by which this passage was made with the expectation that these would be acknowledged and understood by other Aboriginal participants. But, this was tempered by the recognition that under Canadian and US law, rights and title to land and resources are not yet fully determined, and statements about passage, control, and related themes could be entered into the legal process.
In British Columbia, most bands do not have treaties and many are in the process of trying to clarify legally those territories they believe to have been theirs historically, and in the absence of any act of ceding them, still are. Claims of various bands often overlap, and the historic act of excluding and defending one's territory is evidence of exclusivity and title, rather than merely a right to pass through or use resources from a territory or waterway. In the State of Washington, treaties are long-established but treaty rights are still not fully determined. The Boldt Decision of 1974, (19) which allocated half of the salmon catch to tribes as an interpretation of 19th century treaties, was followed by a related decision concerning treaty rights to shellfish (20) and is now likely to proceed to a third area, hunting rights. This makes tribal members from both Canada and the United States wary about making statements, even about their own system of law, which might be misconstrued in a legal setting.
Nonetheless, in an event organized by the Skagit Environmental Endowment Commission, elders articulated their understandings of their own family and band or tribal histories and of Coast Salish laws regarding travel. Unspoken was contemporary national law, yet symbolically, in an era of contest over lands and resources between Coast Salish nations and the colonizers, Coast Salish law was articulated directly on the international borderlands.
The unequivocal and public statements of their right to travel across the US-Canadian border by Coast Salish people at Hozomeen is reminiscent of medieval European law speakers who articulated the law at annual meetings of serfs and nobles, or at summer-time Icelandic gatherings at the Althingi. But it is also an example of historic and contemporary Coast Salish longhouse practice in which speakers state their understandings of rights to incorporeal properties such as ancestral names and songs, and corporeal properties such as land or the right to use particular resource stations. These statements are themselves articulations of law. (21)
The right of travel through Coast Salish territory, and hence the border crossing under Aboriginal law and US and Canadian law, has come up in other guises. The case of Watt v The Queen (22) came before the Canadian judiciary in regard to Robert Watt, a member of the Sinixt (sometimes known as Arrow Lakes), whose members lived in what is now both Canada and the United States, but were declared legally extinct in Canada in the middle of the 20th century, and are subsumed within the Colville Nation on the US side. (23) The Sinixt efforts to send Watt, a community member, to tend to their ancestral graves in Canada were rebuffed by his deportation, although band members claim the right to travel and reside within their historic territory and the obligation to look after their ancestors. (24) The Sinixt themselves put it this way: "After harassment and border crossing problems Sinixt Robert Watt leads a legal battle for the right to travel freely across International Boundary which divides the territory. He does this on behalf of all Sinixt people." (25) The Sinixt are not looking lor the simple right of border crossing, which is guaranteed to Aboriginal peoples of Canada and the United States, but to have their territorial rights and their band in Canada recognized.
FISH AND WATER
One of the entanglements relating to law and borderlands in the Salish Sea concerns the movement not just of people, but of water and of salmon, some of which cross through US waters prior to entering into Canadian waters and encountering both Aboriginal and non-Aboriginal fishers. This has led to competition over the resource and to litigation. Wadewitz has taken note of the problems at the border in an earlier period:
In August 1895, George Webber, the U.S. customs inspector at at Point Roberts, gazed out at the boundary waters between Washington State and British Columbia and lamented their porous nature. The Canadian salmon fishing boats that illegally traversed the water border particularly exasperated him. "If you try to get to them," he wrote, "they will steam away for a hundred yards across the line and then lay and laugh at you." The only way to catch them, Webber advised his superiors, was "to wait your chance, and the first time you can get aboard them in American waters to make the seizure." (26)
The Pacific Salmon Treaty between the United States and Canada was signed in 1985 in an effort to deal with such problems. The Pacific Salmon Commission is a 16-person body with 4 Commissioners and 4 alternates each from the United States and Canada, representing the interests of commercial and recreational fisheries as well as federal, state, and tribal governments. On the US and Canadian sides, members of Aboriginal communities have seats at the table of the body.
But problems have arisen in part because Indigenous law that managed the fish-human relationship prior to the imposition of foreign law was overlooked by the border-creation process in 1846. The diplomats who drew the border along the 49th parallel and out on a jagged course through the Gulf Islands failed to take into account the movements of tides and movement patterns and life cycle of salmon. With the rise of industrial fishing and new methods that allowed canning of salmon, overfishing became the norm and Aboriginal fishers found themselves largely pushed out of the harvest.
The dispossession of Aboriginal peoples from the fishery is well-known (27) but far less visible is the effort by a small, non-federally recognized band, the Hwlitsum, to protect their fishery in their homelands on the Lower Mainland ol British Columbia and portions of the Gulf Islands. The Hwlitsum have an anomalous status within Canadian law. The members are largely individually status Indians but their existence as a band is not fully recognized, and, for the moment at least, is without a land base. They are, however, in phase two of the treaty process and a member of an intertribal council composed of Vancouver Island-based communities historically linked to them. (28) The Hwlitsum have acted within the mainstream legal system, documenting their resource locations in a "traditional use study", (29) and have established a strength of claim to the territories used by their ancestors and by many present-day band members who fish, hunt, and gather. Consequently, they have asserted their right to be consulted in any development that might affect their ability to harvest or conduct traditional cultural practices under section 35 of the Constitution Act, 1982. (30)
Section 35 reads:
(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
(2) In this Act, "aboriginal peoples of Canada" includes the Indian, Inuit and Metis peoples of Canada.
(3) For greater certainty, in subsection (1) "treaty rights" includes rights that now exist by way of land claims agreements or may be so acquired.
(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons. (31)
While subsequent case law has considered the specific meaning of "aboriginal rights", (32) the Hwlitsum argue that section 35 provides them the unfettered right to be consulted and to give testimony, for example, in the upcoming Canadian National Energy Board hearings regarding proposed pipeline expansion into the Salish Sea region and expansion of the Port of Vancouver, which lies squarely in their historic fishing waters. (33) In that testimony, they expect to make clear that their waters, and the species in those waters--including birds, fish, and shellfish of many sorts--will be irreparably harmed by an oil spill of even moderate size. And, they argue, the issue is vital because British Columbia lacks the capacity to respond promptly or in force to such a spill. Graham Knox, Emergency Response Coordinator of the BC Ministry of the Environment, confirmed in a meeting with Hwlitsum leaders, which I attended on 12 September 2013 at the Cowichan First Nation Centre, that damage from spills will be unavoidable as British Columbia has only 16 staff in the program for the whole of the province.
With the loss of shellfish and fish, they say, they will be unable to properly carry out ritual and spiritual life, which requires these foods to feed both ancestors (through burning in a ritual fire that sends the spiritual essence of the species) and the living. (34) Nor will they be able to carry out their stewardship function for territories they occupied and used, or their relationships with animal species and the immortal beings that also occupy the land and waterways. These responsibilities, they argue, are mandated by their law. Barsh refers to Salish Sea peoples environmental laws and references "cleanliness" as the closest approximation to stewardship, because stewardship has spiritual connotations relevant to maintaining relations with the landscape. (35) Although it may appear abstract, obligations to the land and water are fundamental to Coast Salish law, and is characteristic of Aboriginal thought generally, as Christie points out:
The identity of these individuals (and the various communities they collectively comprise) is provided by the responsibilities they have, which work to weave the web of which they are parts. There are, quite simply, things the individual must do, responsibilities to family, clan and community that must be respected and that must lead to action. Responsibilities act to define a core of the identity of the individual, just as the existence of a society centred around responsibilities defines the identity of Aboriginal communities. (36)
The Hwlitsum draw on both Canadian constitutional law and Coast Salish law. They argue that they are following their ancestors, who responded to a shelling of their community in 1863 by the British Navy (37) by an attempt to protect their territory under their own law, which obligates them to do so. (38) Chief Rocky Wilson is both a pragmatist in evoking Canadian law and a traditionalist in evoking the law of Coast Salish peoples, in particular regarding requirements of using harvested foods in ritual.
But, further, in their effort to fulfill their obligations to their land and waterscapes, and ultimately to their ancestors, the Hwlitsum met in 2013 with a US tribe, the Makah Nation, located on the far northwest corner of the Olympic Peninsula of Washington state, for mutual assistance in creating an emergency response group for the waters (and fish) that flow between the United States and Canada. The Makah have a considerable presence in the emergency response field. In 2008 the Makah created their Office of Marine Affairs with funding from the federal Environmental Protection Agency and were given a voting seat on the Region 10 Response Team/Northwest Area committee. They prepared for training as "all hazard responders", in conjunction with the US Coast Guard. The Marine Emergency Response Corporation employs three tribal members for duty on the 73-foot oil skimmer, Arctic Tern, and on the spill response vessel, Loon. The National Response Corporation employs two tribal members to maintain the 110-foot oil skimmer, Cape Flattery. (39) The Hwlitsum and other Coast Salish groups of Canada commonly speak of the waters and resources as their own territories where their own resource laws must be maintained. Hence, they have invited cooperation to further their ability to meet their obligations.
All of this is a current example of the historical practice of family leaders acting as stewards of particular resource areas connected to their ancestral name, which sometimes required closing or limiting access to resource areas. Under Coast Salish law, these name holders had the unfettered right to control the resource for purposes of maintaining proper relations with the spirit beings who, constituted as fish and other species, offer themselves to people. (40)
"LIKE A PASSPORT"
Coast Salish people continue to press for recognition of their own legal practices and concepts by federal officials, who sometimes respond positively, albeit without public notice. An unusual case occurred in August of 2009 when the Chief Justice of the Suquamish Tribal Court, Randall Steckel, organized a legal document to help a Canadian First Nations person from northern Vancouver Island cross back into Canada after departing from Suquamish territory in Washington. This person was in attendance at an inter-tribal (and international) canoe event known as Paddle to Suquamish, camping on Suquamish lands, when his or her tent was vandalized and travel documents stolen. The tribal police and tribal probation officer brought the situation to the attention of the Court. The Court ascertained the identity of the person in question by taking testimony on record of tribal people and the family. They determined that the person was a Canadian citizen and prepared a letter requesting Canadian border guards to recognize the identity as determined by the Suquamish Court. Judge Steckel reports that this person crossed through to Canada without difficulty and the letter was stamped by border service guards "like a passport". (41)
The Suquamish Tribal Court is an entity recognized by the Suquamish Tribe, other Coast Salish courts and inter-tribal appeals courts, the State of Washington, and the United States. It is not, however, known to Canadian authorities. However, representatives of Canada apparently chose here to recognize a US federally-recognized tribe as a legal entity in this instance. The backstory is perhaps the interesting part: Judge Steckel recalls that the letter was created to facilitate the travel of a visitor to Suquamish territory and that Suquamish historic law and practice required safe travel out of Suquamish territory and back to the home of these guests. This form of historic law emerges out of the requirements of predictable, safe, and respectful interactions. (Historically, and in the present day, guests at major events such as potlatches are provided with enough food to return home.) Coast Salish law of travel imposed a burden of care on the Suquamish who acted here through their designated authority, the Tribal Court. Note the similarities to the discourse at the Hozomeen event, regarding rights of travel where proper protocol was recognized, except that in this case, the requirements of hosting are emphasized. Unlike the Mohawk of New York state and Quebec, this is not a case of an Indigenous-issued passport, and the Suquamish have no such document. It is a case of cooperation between tribal and national legal jurisdictions, and, consequently, Coast Salish law and state law, and of the innovation of new forms of relationship.
FISHING RIGHTS ACROSS THE BORDER
A more direct challenge to US and State of Washington law in the interest of Coast Salish concepts of property, ownership, and use rights came in the case of Steven Stark, a member of the Tsawwassen First Nation, a community of some 350 people located about 20 kilometers south of Vancouver and on the international border. The community is one of the few Aboriginal nations in British Columbia to have successfully gone through the BC Treaty process. (42) The Final Agreement contains a map of "Tsawwassen Fishing Area and Tsawwassen Intertidal Bivalve Fishing Area", which shows the Nations fishing area and intertidal bivalve fishing area, bisected by the US border, thereby cutting off large regions of its historic fisheries in Boundary Bay and the Straits of Georgia (all part of the Salish Sea). (43)
Mr. Stark was arrested in October of 2011 for fishing in US waters and his load of Dungeness crab was seized. This arrest occurred in Boundary Bay, a body of water divided between Canada and the United States and within the historic waterscape of his band. Steven Starks claim is that he may rightfully fish in this area just a few miles from his home. He hired a Bellingham, Washington criminal lawyer who prepared a defence, which included hiring me as an expert witness on Tsawwassen historic fishing territories and kin relations with US tribes. Counsel's argument in Washington v Stark (44) depended, in part, on whether Mr. Stark was fishing in historic Tsawwassen waters. In a report to the Superior Court of Whatcom County, Washington, I wrote (and later gave direct testimony to this):
(1) I have been asked to provide an expert opinion regarding whether the waters in which Mr. Steven Stark, huk-ka-luk-alle, when observed by U.S. Customs and Border Protections agents, are within the usual and accustomed fishing grounds of the Tsawwassen First Nation. This area is in the vicinity of the waters off Point Roberts, 48 59 85 N 122 56 74 W. (See attached map). The Tsawwassen First Nation is a treatied, federally recognized Indian band of Canada. The term "band" in Canada is equivalent to the term "tribe" in the United States and the Tsawwassen First Nation is the Canadian equivalent of the Lummi Nation or other recognized U. S. tribe. (45)
(14) It is my opinion that ancestors of the present-day Tsawwassen occupied and used territories adjacent to the international border at treaty-time; that they took marine resources from the waters of their territory; and that, specifically, this included waters off of Point Roberts, including what is now United States territory; and that Tsawwassen people of the time of the Treaty of Point Elliott customarily harvested in the area in question, namely off of Point Roberts and Blaine. Their overall harvest strategy included crab. (46)
The defence argument included the novel notion that Coast Salish tribes were densely connected through kinship and exchange such that treaty rights of the Coast Salish in the United States are extended to those Coast Salish groups within the Salish Sea that could demonstrate these connections. In a 20 December 2012 report to the Court, later accepted as evidence, I wrote:
I have been asked to give an expert opinion concerning patterns of marriage between ancestors of the members of the Tsawwassen First Nation of British Columbia, Canada, and the Lumrni Nation of Washington State, United States, or other signatories to the Treaty of Point Elliott of 1855. There are three lines of evidence I draw on in making my conclusions. These are 1. Evidence from anthropological materials concerning the culture of the Central Coast Salish peoples, including patterns of travel, visitations to relatives, co-participation in winter ritual life, marriage. 2. Specific anthropological studies of marriage patterns of Coast Salish peoples. 3. Observations of a Tsawwassen family genealogist regarding her own family history and oral histories regarding relations with Lummi. (47)
It is my opinion that mid-19th century ancestors of the Tsawwassen First Nation regularly intermarried members of the Lummi Nation, a signatory tribe of the Treaty of Point Elliott, that is a "treaty tribes," in local parlance. People from Lummi lived in Tsawwassen territory and visa versa. I have focused on Lummi here in drawing this conclusion but it is also my opinion that the Tsawwassen ancestors intermarried into other treaty tribes, including Swinomish and Nooksack (signatories to the treaty and federally recognized in 1974). These patterns have continued from treaty times into the present. (48)
Both of these arguments were made by reference to anthropological materials but directly reflect concepts contained within historic Coast Salish law. Marriage of Coast Salish people was historically to those outside of known kinship (sometimes given in terms of four or seven generations); closer marriage was incestuous and forbidden with severe sanctions imposed by Coast Salish law. This system of marriage underlies the network of ties within the Coast Salish world (49) and the connections between the Tsawwassen and Lummi, for example. In addition, in-marriage provided recognized rights under Coast Salish law to portions of the territory of the in-laws, under a system of protocol and management. (50) Notably, the criminal defence reproduced and depended on features of Coast Salish law.
Tsawwassen authorities initially did not back Mr. Stark, but recognized common cause in their difficulties with fishing near and crossing the border. Reporters noted:
But Tony Jacobs, a member of the TFN legislative assembly, says that the new council--which reinstated his licence--is fully supportive of Stark. The border, he says, has only become an issue for TFN fishermen since 9/11. Like Stark, Jacobs' grandfather and father both fished around Point Roberts and throughout Boundary Bay. Jacobs is appalled at the severity of the charges Stark faces. "It doesn't matter if it's small or big," Jacobs says. "When you're dealing with the American authorities, anything to do with the border is just ridiculous." He hopes Stark wins the trial and TFN fishermen are granted more flexibility in terms of crossing the border. (51)
In my conversation with Stark in February of 2013, he expressed the desire to avoid a criminal conviction and to be able to fish in his traditional area. Fie spoke about the fisheries in light of the activities of his ancestors, noting that his father fished the grounds where he was arrested, as did other ascendants, including his great-grandfathers. He noted his kin connections and those of his ancestors to tribes now on the other side of the international border, including the Lummi and Nooksack, and his view that these connections remain constant, an essential part of the social fabric of Indigenous life. Stark spoke of the use of private family knowledge to fish in specific locations with specific, localized technology. He noted the connection between ancestral names (sometimes called "Indian names" and given within families) that are linked with the control of specific places and the place names also associated with these locations. The place names in the Coast Salish world commonly feature information about the physical nature of the place and historical or mythological details and show the relationship of the people to the land and waterscape. Under Coast Salish law, holders of these names (which are incorporeal family properties) were obligated to protect the animal and plant life and could preclude others from hunting, fishing, or gathering. Coast Salish law in this sense might be thought of as "decentralized law", in that there was, historically, no central government to enact law, and instead it arises out of interactions between these constituent families. (52)
Stark, then, built from his own sense of family rights and obligations to the conclusion that despite the official Tsawwassen position regarding their historic fisheries as only in Canadian waters, there was every reason for him to be able to fish in the American portions of Boundary Bay. To him, fishing is both a family and tribal right. For Stark, these rights are tied to a particular protocol needed to access Aboriginal fishing territories, a protocol required of other tribes and bands as well as non-native peoples. If these protocols are not followed, he noted, it is a "form of disrespect to the ancestors," and a form of "divide and conquer".53 (Debates over fishing protocol arise in Coast Salish peoples' discussions of their role in fishing and open conflict occasionally breaks out between native people and with government officials.) Finally, Starks feelings reflect the larger sense that the colonizers have damaged Aboriginal fishing to the extent that they have to go farther afield to find their catch, and should, by rights, be permitted to do this.
Stark's position gets at the larger question of how American and Canadian treaty and national law has converted what were once family rights to resource stations to strictly tribally-controlled rights, an issue noted by Barsh, (54) who argues against this development in Puget Sound:
The importance of the incentive system embedded in traditional law is highlighted by the fate of Puget Sound salmon fisheries after judicial implementation of Coast Salish treaty fishing rights in 1974. The federal court rejected arguments that fishing sites are individually or family-owned, and chose instead to allocate fishing areas by "tribe." By court order, then, traditional custodians were divested of their control of access to fishing sites, and replaced by elected tribal leaders, tribal government bureaucrats and biologists. (55)
In effect, treaty law in the United States has erased features of historic Coast Salish resource law.
Stark further developed his position into a claim for the rights of the Aboriginal peoples of Canada to fish in US-controlled waters because of his understanding of rights under the Jay Treaty. (56) One newspaper headline proclaimed, "One B.C. fisherman's fight for cross-border native rights". (57) Although Stark attempted, without success in court, to draw on treaty law, he paired it with Coast Salish law relating to property rights.
My conversations with Stark did not lead me to believe that this abstract Native right was his primary motivation. Elis motivations rest with the desire to make money fishing, his livelihood and that of many of his fellow Tsawwassen nation members, but also with his sense of his family hereditary rights. These rights, he says, were not negotiated away by his family, despite the new Tsawwassen treaty with Canada. "BC didn't own the land," he said, "there is no agreement to stay in our boundaries." (58)
In addition to the criminal charges within the State of Washington criminal justice system, Stark faced charges by Homeland Security, including a fine for illegally crossing the border in a boat. Stark notes that he was given 60 days to pay and informed that failure to pay is an admission of guilt. He says that he sent copies of his Status Card, (59) the Jay Treaty, and the 1974 Boldt decision. Stark believed that the terms of the Boldt decision would apply to those nations that are part of the social fabric of the Puget Salish tribes (60) and that under the terms of the Jay Treaty he could pass freely with his Status Card, which shows his membership in the Tsawwassen First Nation.
There are several interesting features to Starks litigation and concerning what legal entity would properly have jurisdiction. Stark's belief was that historic Coast Salish law ought to be applied to his circumstances. This is not without precedent. Historic law, rooted in the relations between extended families that comprise the larger collective, (61) had previously been applied at the Peace Arch border through the actions of US border officials to recognize the spiritual needs of "Babies", initiates into Winter Dancing. These initiates, whose gaze presents spiritual danger to others, were permitted for a period to pass through the border without being looked at if they had identification cards (this was before the requirement of a passport or a "hardened" drivers licence) and were under the supervision of the Longhouse elder accompanying them. (62) This was a significant recognition of the legal practices of the Coast Salish, which forbids interference with Babies. This feature of the border, and the local cooperation, has disappeared with the border hardening.
But Stark thought his family rights to particular locations on the land and water, as recognized by the ancestral law of his own nation (although not by the contemporary law of the Tsawwassen First Nation) ought to be upheld and believes that his family has not set them aside. Further, the Coast Salish legal regime, as it existed to regulate affairs between groups of Coast Salish, has itself not been extinguished on the Canadian side because most federally recognized groups have not entered into treaties modifying their rights and practices, although the Tsawwassen have done so. Many of the other Coast Salish bands have not ceded their land, nor with it, in Aboriginal reckoning, the law regulating that land. The historic system of law, Stark implies, continues. (63)
The legal entanglements included mainstream law as well. As counsel pointed out in his argument in Washington v Stark, state lower courts ordinarily do not consider international treaty law, which might apply in this case since Stark had crossed the boundary, and, he claimed, is outside their jurisdiction. In addition, because counsel argued (although not successfully) that Stark was fishing in a "right of way" in Indian country (itself a legal category), the federal government, not the State of Washington, alone retained the right to prosecute.
On the occasion of a preliminary hearing 23 May 2013, with imprisonment at issue, Stark was late in arriving. Homeland Security officials, apparently unaware or unconcerned, detained him at the border while he attempted to enter the United States to attend his own criminal trial. He was released in time to attend the later stages of the hearing.
A final example of the expression of Coast Salish law and its relationship with mainstream law and procedure comes from the case of a repatriation of a Sasquatch (properly spelled as Sasq'ets) mask from the Museum of Vancouver to the Sts'ailes (formerly Chehalis band) community located in the upper Fraser Valley. The Sts'ailes are closely identified with Sasq'ets; its image appears as the community logo and members have long reported sightings and interactions. The Museum was given the mask in 1939 by a white schoolteacher in the community, JW Burns, although it is not clear how Burns acquired the mask. A representative of the Sts'ailes wrote the Museum requesting repatriation and the mask was shown to Sts'ailes representatives at a repatriation of ancestral remains. On 11 December 2013, the four members of the Museum Repatriation Committee traveled to Sts'ailes to meet with Chief, members of the Council, and employees, and to attend events organized by the community. (64)
A search of Sts'ailes and Museum of Vancouver records uncovered some information regarding the provenance of the mask. It was carved in 1938 by a Sts'ailes community member and was paired with a head-to-toe costume. The carver had worn the Sasq'ets mask in public performance that year and there are several photographs of this performance. The Repatriation Committee learned far more during the December day at Sts'ailes. (I write as a member of the Board of Directors and chair of the Collections Committee, to which the Repatriation Committee is attached, and as one in attendance at these events.) The Chief noted that he is the grandson of the carver and a Council member described his own relationship to Sasq'ets.
In brief, in the 1930s the carver had had a spiritual encounter with Sasq'ets that led to his entry into the winter ceremonial dance (or Syowen ceremony). There, he learned a song and a dance that manifested the spiritual being and that became a part of his person. (65) After the carver's death, the song, which is always personal to the spirit dancer, was "put away". Later, the song was transferred so that the song/dance could be performed in public. The council member reported that his own engagements with Sasq'ets were part of this transference (and transformation) and evidence that this was acceptable to Sasq'ets.
All of this information is important because it sets the stage for the creation of legal rights under Coast Salish law. At the December meeting, the Chief and council had organized a performance of the Sasq'ets song/dance to be held at an elder's Christmas lunch. This public performance by drummers and dancers constitutes a legal claim to the Sasqets mask because the performance can only be done by those with the rights to this spiritual, incorporeal property and its physical manifestations. The mask, song, and dance constitute a unity; they are inseparable components of this physical manifestation of the spirit being in its relationship to the human world. The council member had explained how rights to the performance were, in effect, ratified spiritually and the performance in December made this public. In theory, this claim to the right to dance the Sasqets mask could have been contested (it was not), although such contests do arise over incorporeal property, including ancestral names, in the contemporary Coast Salish world.
Drummers also performed an honour song, acknowledging the Museum committee members and their repatriation work. All of this constituted a formal request for repatriation. Here, in a legal order that has maintained performative features, a dance/song constituted the equivalent of a legal document. The Sts'ailes had shown their rights, had confirmed this publically, and had requested that the third element of the unity, the mask, be rejoined with the dance and song. This was done within the practices of the Coast Salish peoples.
The second piece of this story concerns mainstream law and administrative practice. Until recently, the Museum of Vancouver had no formal repatriation policy and had carried out no formal repatriations. The Board, in a phase of renewal of the Museum's mission in 2008-09, and at my urging and with the backing of the Director and professional staff, drafted a policy that was sent to the City of Vancouver legal department. The Board and the Director and professional employees act on behalf of the City, which owns the collection. The City eventually approved the new policy, which contains the terms under which repatriation can occur; in brief, when title is not clear or may have been unethically established, or if spiritual concerns of Aboriginal people are in question. The Collections Committee must approve the repatriation request (in some cases, a repatriation has been initiated by the Museum and a formal request from the First Nation has followed), which then recommends to the Board of Directors, which must also approve. While Canadian repatriations are not governed by federal law, as they are in the United States, there are still legal procedures and protections for the City-owned collection.
In this case, the Collection Committee approved the repatriation on 20 January 2013, as did the Board a short time later. The repatriation occurred on 14 May 2014 at Sts'ailes and the mask was again danced, to the evident delight of several hundred band members. On 7 June 2013, the Sts'ailes, further recognized the repatriation at the annual Sasquatch Days event held in conjunction with the town of Harrison Hot Springs, the Harrison Festival Society, and Tourism Harrison.
The Sts'ailes repatriation connects two bodies of law: mainstream property law as clarified in the repatriation policy (and, in another sense, the Museum's contract with the City to manage the collection), and Coast Salish law regarding incorporeal property and its physical manifestations. The process, however, was initiated out of Coast Salish law and practice and the family with the mask prerogative, and the council on behalf of the family explicitly made their claim to the mask within that law. Museum practice had only recently been adjusted to accommodate these Aboriginal legal orders.
CONCLUSION AND DISCUSSION
Sa'ke'j Henderson observed in 2000, "In its constitutional analysis, the [Canadian Supreme Court] has rejected ... false assumptions of colonization, affirming that sui generis Aboriginal law exists and is constitutionally protected by s. 35(1) of the Constitution Act, 1982" (66) He noted that this has been the case since the Supreme Court "affirmed Aboriginal nationhood and its legal order" in R v Sioui, (67) but how does this work? Where and when are Aboriginal legal orders apparent in a borderland of considerable legal complexity and confusion, particularly since 9/11? Legal scholar Gordon Christie writes regarding the problems posed for Aboriginal law by liberal legal theory and critical legal theory, and the problems facing Aboriginal peoples within Canada more generally:
It is not a problem of working out how Aboriginal interests can be translated into group rights and fit into the matrix of rights in Canada, just as it is not a problem of understanding these rights as reflective of group autonomy, and not a matter of recognizing that the "fluid and dynamic" interests of Aboriginal peoples can be better served through progressive democratic measures. Rather, it is essentially a question about the ability of Aboriginal peoples to continue to define who they are, a potential for self-definition which includes their capacity to project their own theories and particular forms of knowledge. (68)
The cases I have given from the Salish Sea borderlands reveal the many ways Aboriginal peoples have recently sought to define themselves and project their own forms of law and knowledge. Many of these ways are hard to see, out of sight of mainstream lives, and difficult for mainstream people to understand, but they are constant, insistent, and subtly transformative. Even when the substantive issues are brought to public attention, Coast Salish law might not be understood to be at the heart of the matter.
There are counter-examples. The Museum of Vancouver repatriation is one example of the transformative process at work in the development of a repatriation policy and in the routine recognition of Aboriginal law and rights to incorporeal property. Museum staff members now treat ancestors (osteological material) held in the collection specifically according to Aboriginal protocol implemented through consultation.
But legal scholar John Borrows has poignantly observed the legal restrictions imposed on the physical and intellectual mobility that is characteristic of the lives of Indigenous peoples. He writes that "most legal systems manipulate conceptions of mobility to deny or diminish Indigenous rights", and that these laws contribute to "removal from wider territories and relationship". (69) State law, he argues, blocks both physical movement of peoples and erases the underlying concepts. The examples here give a sense of the importance of movement for Coast Salish peoples historically and contemporaneously and the significance of the underlying Coast Salish legal order that has regulated this.
Several cases involve complex ways in which mainstream law is mobilized in support of Aboriginal practices and understandings, creating outcomes that are unexpected by the mainstream population. The Sts'ailes, whose efforts at repatriation of a mask have been detailed here, describe the connection between their legal order and their cultural and spiritual practices in their December 2013 newsletter:
Lets'emort Sts'ailes Ikwe'lo. Xwem xwem sqalewel snowoyelh lam te mekw wates xaxa temexw te'i. We are all one mind, one spirit as Sts'ailes. We value being strong and balanced; our laws and teachings are for everything and everyone; everything is sacred to us. (70)
But note that the Sts'ailes have the expectation, as the mask case shows, that their law will apply in issues concerning their own society, and that, indeed, there are not reasonable alternatives. They acknowledge and work within Museum procedures dealing with collections (and the underlying notion of City of Vancouver ownership) but place emphasis on their own ways of understanding.
The location of the Coast Salish (most of the communities, in any case) on the Salish Sea borderlands increases the complexity of legal engagement. These cases, particularly that of Steven Stark, show Coast Salish people as occasionally subject to multiple legal jurisdictions, including tribal courts of Puget Sound, tribal constitutional law in British Columbia, state and federal law in the United States, and provincial and federal law in Canada as they attempt to live their lives under their own laws and practices, variously interpreted and enacted. Individual Coast Salish people, such as Stark and the canoeist at Suquamish, attempt to find their own way through the external legal systems. They act to transmit the moral legitimacy of their historic knowledge and ways of knowing while "strongly questioning and resisting the dubious neo-liberal and legal integrity of state policies." (71) James Anaya, the UN Special Rapporteur on the Rights of Indigenous People, optimistically notes successes of Aboriginal people in asserting their laws:
Indigenous groups are asserting claims as distinct peoples with their own legal systems and associated cultural patterns and political institutions. In doing so, Indigenous peoples have made significant strides towards contributing to a greater pluralism in the global legal and political landscape--a pluralism in which Indigenous peoples and their legal systems are starting to find a place. (72)
Although Anaya is speaking primarily of the use of international law and protocol rather than in regard to national or regional law, his comments show that Aboriginal people are engaging their own legal orders at every level. I will only note that Coast Salish peoples, at least, will no doubt continue to foreground their law. The sheer number of their current efforts to make their law visible testifies to this and one can only conjecture that even more Coast Salish individuals and communities will find new means to assert their law in an era in which communities (and inter-tribal groups such as the Union of British Columbia Indian Chiefs) have new legal and financial resources at their command.
Finally, I note that while there is a vigorous debate about whether it is possible or even desirable for Indigenous law, of the various sorts I describe here, to create space within mainstream law, (73) the fact is that Coast Salish people continue to project their law into public space. They seem compelled to do so because, as Christie writes, "the broad strokes of how to live the good life have been worked out." (74)
(1) See Patricia Ewick & Susan S Silbey, The Common Place of Law: Stories from Everyday Life (Chicago: University of Chicago Press, 1998); Sally Engle Merry, "Pluralizing Paradigms: From Gluckman to Foucault" (1999) 22:1 Political and Legal Anthropology Review 115.
(2) Sally Engle Merry provides a succinct overview of legal pluralism (see Sally Engle Merry, "Legal Pluralism" (1988) 22:5 Law & Soc'y Rev 869), and Paul Schiff Berman describes the "new legal pluralism", which considers normative, overlapping communities, some non-state, and their legal entities, and the transnational, emerging global legal system (see Paul Schiff Berman, "The New Legal Pluralism" (2009) 5 Annual Review of Law and Social Science 225). Richard Wilson provides a concise critique. See Richard A Wilson, Book Review of Global Legal Pluralism: A Jurisprudence of Law Beyond Borders by Paul Schiff Berman, (2013) 40 JL & Soc'y 706. For a consideration of the interdisciplinary field of law and society studies, see Austin Sarat et al, eds, Crossing Boundaries: Traditions and Transformation in Law and Society Research (Evanston, 111: Northwestern University Press, American Bar Foundation, 1998).
(3) For example, I worked with the Sto:lo Nation of British Columbia documenting their justice practices in the 1990s, with the Upper Skagit tribe of the State of Washington documenting their historic territories and practices of controlling access, and with the Hwlitsum band of British Columbia in documenting their historic social organization and resource practices. I organized a graduate ethnographic field school with the Sto:lo Nation at their request for eight summers in the 1990s to undertake research they identified. Discussions about the nature of collaboration with Aboriginal communities are frequently reported in the American Anthropology Association Newsletter and the journals Human Organization and Current Anthropology. Good examples of the literature in anthropology include: Wayne Warry, "Doing Unto Others: Applied Anthropology, Collaborative Research and Native Self-Determination" (1990) 10:1 Culture 61; Luke Eric Lassiter, "Moving Past Public Anthropology and Doing Collaborative Research" (2008) 29:1 NAPA Bulletin 70. My UBC colleague Charles Menzies has published his own views. See Charles R Menzies, "Putting Words into Action: Negotiating Collaborative Research in Gitxaala" (2004) 28:1-2 Canadian Journal of Native Education 15. For Gordon Christie's thoughts on the development of Indigenous legal theory and the participation of non-Indigenous scholars, see Gordon Christie, "Indigenous Legal Theory: Some Initial Considerations" in Benjamin J Richardson, Shin Imai & Kent McNeil, eds, Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oxford: Hart Publishing, 2009) 195.
(4) Gordon Christie, "Law, Theory and Aboriginal Peoples" (2003) 2 Indigenous LJ 67 at 91.
(5) See John Borrows, "Listening for a Change: The Courts and Oral Tradition" (2001) 39:1 Osgoode Hall LJ 1.
(6) See Karen L Whonnock, "A Tale of Two Courts: The New Westminster First Nations Court and the Colville Tribal Court" (2011) 44:1 UBC L Rev 99.
(7) See Bruce G Miller, "Folk Law and Contemporary Coast Salish Tribal Code" (1995) 19:3 American Indian Culture and Research Journal 141; Bruce Miller, "The 'Really Real' Border and the Divided Salish Community" (1997) 112 BC Studies 6 [Miller, "The 'Really Real' Border"]; Bruce G Miller, The Problem of Justice: Tradition and Law in the Coast Salish World (Lincoln: University of Nebraska Press, 2001) [Miller, The Problem of Justice], However, others contest the possibility that this can be achieved. See Larry Nesper, "Negotiating Jurisprudence in a Tribal Court and the Emergence of a Tribal State" (2007) 48:5 Current Anthropology 675; Russel Lawrence Barsh, "Putting the Tribe in Tribal Courts: Possible? Desirable?" (1999) 8:2 Kan JL & Pub Pol'y 74; Justin B Richland, "Pragmatic Paradoxes and Ironies of Indigeneity at the 'Edge' of Hopi Sovereignty" (2007) 34:3 American Ethnologist 540.
(8) See Miller, The Problem of Justice, supra note 7.
(9) See Miller, "The 'Really Real' Border", supra, note 7; Bruce G Miller, "The Individual, the Collective, and Tribal Code" (1997) 21:1 American Indian Culture and Research Journal 107.
(10) For other writing on this topic, see Brian Thom & Don Bain, Aboriginal Intangible Property in Canada: An Ethnographic Review (Ottawa: Industry Canada, 2004), online: Industry Canada <http://www.ic.gc.ca>; Brian Thom, Coast Salish Senses of Place: Dwelling, Meaning, Power, Property and Territory in the Coast Salish World (PhD Thesis, McGill University, 2005) [unpublished]; Russel Lawrence Barsh, "Coast Salish Property Law: An Alternative Paradigm for Environmental Relationships" (2005) 12 Hastings W-Nw J Envtl L & Pol'y 1 [Barsh, "Coast Salish Property Law"]; Russel Barsh "Ethnogenesis and Ethnonationalism from Competing Treaty Claims" in Alexandra Harmon, ed, The Power of Promises: Rethinking Indian Treaties in the Pacific Northwest (Seattle: University of Washington Press, 2008) 215 [Barsh, "Ethnogenesis"]; Northwest Intertribal Court System, Traditional and Informal Dispute Resolution Processes in Tribes of Puget Sound and Olympic Peninsula Region (Edmonds, Wash: Northwest Intertribal Court System, 1991); Miller, The Problem of Justice, supra note 7; Jay Miller, Lushootseed Culture and the Shamanic Odyssey: An Anchored Radiance (Lincoln: University of Nebraska Press, 1999); William W Elmendorf, Twana Narratives: Native Historical Accounts of a Coast Salish Culture (Seattle, Vancouver: University of Washington Press, University of British Columbia Press, 1993); First Nations of South Island Tribal Council, Aboriginal Self Determination, Indian Family Law, Tribal Indian Governments (1987) [unpublished]. Internal documents such as the Sto:lo Heritage Policy Manual strongly reflect Coast Salish law. See Sto:lo Heritage Policy Manual (Sto:lo Nation, Chilliwack, BC, 2003) (Approved by the Sto:lo Government House Chiefs & Councilors in 2003), online: Sto:lo Research and Resource Management Centre <http://www.srrmcentre.com>. "Indigenous Law in Coast Salish Traditions" was the subject of a conference hosted by Cowichan Tribes in 2010. In any case, much of Coast Salish law is recognizable to the mainstream.
(11) See John Borrows, who noted the "long history of recognition of indigenous legal traditions by those who encountered these societies": John Borrows, "Indigenous Legal Traditions in Canada" (2005) 19 Wash UJL & Poly 167 at 178 . Further, Borrows observed that "[flaws arise wherever interpersonal interactions create expectations and obligations about proper conduct": John Borrows, Canada's Indigenous Constitution (Toronto: University of Toronto Press, 2010) [Borrows, Canada's Indigenous Constitution].
(12) Snuneymuxw First Nation, "Coast Salish Culture", online: <http://www. snuneymuxw.ca>.
(13) See Miller, "The 'Really Real' Border", supra note 7; Bruce Granville Miller, "Conceptual and Practical Boundaries: West Coast Indians/First Nations on the Border of Contagion in the Post-9/11 Era" in Sterling Evans, ed, The Borderlands of the American and Canadian Wests: Essays on Regional History and the Forty-Ninth Parallel (Lincoln: University of Nebraska Press, 2006) 49; Bruce Granville Miller, Oral History on Trial: Recognizing Aboriginal Narratives in the Courts (Vancouver: University of British Columbia Press, 2011) [Miller, Oral History on Trial].
(14) See Brad Asher, "A Shaman Killing Case on Puget Sound, 1873--1874: American Law and Salish Culture" (1995) 86:1 The Pacific Northwest Quarterly 17; Jay Miller, supra note 10.
(15) Kris Statnyk, "Tsleil-Waututh Nation and Squamish Nation Sign Save the Fraser Declaration" (11 July 2012), Environmental Law Alert Blog, online: West Coast Environmental Law <http://wcel.org>.
(16) Robert R Mierendorf, Chert Procurement in the Upper Skagit River Valley of the Northern Cascade Range, Ross Lake National Recreation Area, Washington (Seattle: National Park Service, 1993).
(17) June McCormick Collins, Valley of the Spirits: The Upper Skagit Indians of Western Washington (Seattle: University of Washington Press, 1974); Sally Snyder, Fieldnotes (undated), Melville Jacobs Collection, Suzzallo Library at University of Washington (Seattle); Molly Sue Malone Where the Water Meets the Land: Between Culture and History in Upper Skagit Aboriginal Territory (PhD Thesis, University of British Columbia, 2013) [unpublished], especially ch 5 at 136-69.
(18) Bruce Miller, Fieldnotes from visits to Upper Skagit, Wash community (1985- 88).
(19) United States v Washington, 384 F Supp 312, 1974 US Dist LEXIS 12291 (WD Wash 1974).
(20) United States v Washington, 873 F Supp 1422, 1994 US Dist LEXIS 20062 (WD Wash 1994).
(21) See Miller, The Problem of Justice, supra note 7; Thom, supra note 10. Val Napoleon uses the term "legal order" to, as she puts it, "describe law that is embedded in social, political, economic, and spiritual institutions": Val Napoleon, Thinking About Indigenous Legal Orders (West Vancouver: National Centre for First Nations Governance, 2007) at 2 . The Coast Salish people's comments about the mountain pass and their law regulating access, including protocols, are embedded in all of these institutions.
(22) Watt v Canada (Minister of Citizenship and Immigration) (1998), 169 DLR (4th) 336,  2FC 455 (TD).
(23) Paula Pryce, Keeping the Lakes' Way: Reburial and the Re-creation of a Moral World among an Invisible People (Toronto: University of Toronto Press, 1999).
(24) Ibid. The obligation to look after the graves of ancestors has its source in what Napoleon references in relation to First Nations as "divine" or natural law. See Napoleon, supra note 21 at 5.
(25) Sinixt Nation, "Timeline: 1990's", online: <http://sinixtnation.org/ content/timeline>.
(26) Lissa K Wadewitz, The Nature of Borders: Salmon, Boundaries, and Bandits on the Salish Sea (Seattle: University of Washington Press, 2012) at 89.
(27) See Daniel L Boxberger, To Fish in Common: The Ethnohistory of Lummi Indian Salmon Fishing (Lincoln: University of Nebraska Press, 1989); Wadewitz, supra note 26; Fay G Cohen, Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights (Seattle: University of Washington Press, 1986); Douglas C Harris, Fish, Law, and Colonialism: The Legal Capture of Salmon in British Columbia (Toronto: University of Toronto Press, 2001).
(28) Bruce Miller, Fieldnotes from Hwlitsum (2013) [Hwlitsum Fieldnotes]. See Raymond (Rocky) Wilson, "To Honour Our Ancestors We Become Visible Again" in Bruce Granville Miller, ed, Be of Good Mind: Essays on the Coast Salish (Lincoln: University of Nebraska Press, 2007) 131.
(29) Bruce Granville Miller et al The Hwlitsum First Nation's Traditional Use and Occupation of the Area Now Known as British Columbia (Hwlitsum Marine Traditional Use Study), vol 2 (2013) [unpublished].
(30) Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
(32) Key early cases include, among others, R v Sparrow,  1 SCR 1075, 70 DLR (4th) 385; R v Van der Peet,  2 SCR 507, 137 DLR (4th) 289; R v Gladstone,  2 SCR 723, 137 DLR (4th) 648; Gitxsan Houses v British Columbia (Minister of Forests), 2002 BCSC 1701, 10 BCLR (4th) 126; Homalco Indian Band v British Columbia (Minister of Agriculture, Food & Fisheries), 2005 BCSC 283, 39 BCLR (4th) 263; Huu-Ay-Aht First Nation v British Columbia (Minister of Forests), 2005 BCSC 697,  3 CNLR 74; Timberwest Forest Corp v British Columbia (Deputy Administrator, Pesticide Control Act),  BCEA no 31 (QL), 2003 CarswellBC 3619 (WL Can); Penelakut First Nations Elders v British Columbia (Regional Waste Manager), 2004 CarswellBC 2658 (WL Can),  BCEA no 3 (QL); Tsilhqot'in Nation v British Columbia, 2007 BCSC 1700,  1 CNLR 112; Musqueam Indian Band v British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128, 251 DLR (4th) 717 [Musqueam]. Key later cases include Delgamuukw v British Columbia,  3 SCR 1010, 153 DLR (4th) 193 [Delgamuukw]-, Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73,  3 SCR 511; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74,  3 SCR 550 [Taku River].
(33) Hwlitsum Fieldnotes, supra note 28. The Hwlitsum have been accepted as an intervenor, and have scheduled appearances by elders, leaders, and experts, including myself.
(35) Barsh, "Coast Salish Property Law" supra note 10 at 16.
(36) Christie, supra note 3 at 111 . The obligation to feed ancestors is another example of a form of prescriptive law, which Napoleon characterizes as divine or natural law. See Napoleon, supra 21 at 7.
(37) See Chris Arnett, The Terror of the Coast: Land Alienation and Colonial War on Vancouver Island and the Gulf Islands, 1849-1863 (Vancouver: Talon Books, 1999).
(38) See Wilson, supra note 28.
(39) See Chad Bowechop, "Makah Tribal Council's Office of Marine Affairs" (2010) 67:1 Proceedings of the Marine Safety & Security Council 51 at 51-52; Miller, Fieldnotes from Cowichan First Nations Centre (12 July 2013) [unpublished; on file with author],
(40) For discussions of historical and contemporary social organization and resource control and human relations to animals, see Wayne Suttles, Coast Salish Essays (Vancouver, Seattle: Talonbooks, University of Washington Press, 1987); Crisca Bierwert, Brushed by Cedar, Living by the River: Coast Salish Figures of Power (Seattle: University of Washington Press, 1999). Brian Thom provides details about hereditary names and resources. See Brian Thom, "The Paradox of Boundaries in Coast Salish Territories" (2009) 16:2 Cultural Geographies 179 at 185. See also Homer Barnett, The Coast Salish of British Columbia (Eugene: University of Oregon Press, 1955) 134.
(41) Interview of Judge Randall, Suquamish Tribal Court (December 2013) [unpublished; on file with author].
(42) See Tsawwassen First Nation Final Agreement Act, SC 2008, c 32; Tsawwassen First Nation Final Agreement Act, SBC 2007, c 39.
(43) Ibid, Appendix J-3.
(44) (23 May 2013), Bellingham, Wash 11-01-012258-8 (Whatcom Co Super Ct) [Stark],
(45) Stark, supra note 44 (Report by Bruce Miller, 1 October 2012).
(47) Stark, supra note 44 (Supplemental report by Bruce Miller dated 20 December 2012).
(49) See Suttles, supra, note 35; Dorothy Kennedy, "Quantifying 'Two Sides of a Coin': A Statistical Examination of the Central Coast Salish Social Network" (2007) 153:1 BC Studies 3.
(50) See Sally Snyder, Skagit Society and Its Existential Basis: An Ethnofolkloristic Reconstruction (PhD Thesis, University of Washington, 1964) [unpublished].
(51) Joel Barde & Carlos Tello, "One B.C. fisherman's fight for cross-border native rights" Vancouver Sun (13 May 2013), online: <http://www.vancouversun.com/news/ fisherman+fight+cross+border+native+rights/8379487/story.html>.
(52) See Bierwert, supra, note 35; Napoleon, supra note 21.
(53) Interviews with Steven Stark, May 2013 [Interviews with Stark].
(54) Barsh, "Coast Salish Property Law", supra note 10; Barsh, "Ethnogenesis", supra note 10.
(55) Barsh, "Coast Salish Property Law", supra note 10 at 12.
(56) More formally, The Treaty of Amity, Commerce and Navigation, United States and Great Britain, 19 November 1794, 8 US Star 116.
(57) Barde & Tello, supra note 51.
(58) Interviews with Stark, supra note 53.
(59) Aboriginal Affairs and Northern Development Canada (AANDC) notes, "[T]he Certificate of Indian Status, more commonly referred to as the Status Card, is an identity document issued by AANDC to confirm that the cardholder is registered as a Status Indian under the Indian Act"-. AANDC, "Indian Registration, Status and Status Cards", online: <https://vrww.aadnc-aandc.gc.ca>.
(60) For an argument for Boldt rights in Canadian courts, see Douglas C Harris, "The Boldt Decision in Canada: Aboriginal Treaty Rights to Fish on the Pacific" in Harmon, supra note 10, 128.
(61) See Miller, The Problem of Justice, supra note 7.
(62) See Miller, "The 'Really Real' Border" supra note 7.
(63) Interviews with Stark, supra, note 53.
(64) The following account comes from my fieldnotes of a trip to Sts'ailes in 2013.
(65) See Pamela Amoss, Coast Salish Spirit Dancing: The Survival of an Ancestral Religion (Seattle: University of Washington Press, 1978).
(66) Sa'ke'j Henderson, "Aboriginal law now a source of constitutional law", The Lawyer's Weekly (20 October 2000) 12.
(67) Ibid, citing R v Sioui,  1 SCR 1025,70 DLR (4th) 427 at 1053.
(68) Christie, supra note 4 at 72 [emphasis added].
(69) John Borrows, "Physical Philosophy: Mobility and the Future of Indigenous Rights" in Richardson, Imai & McNeil, supra note 3,403 at 408.
(70) "Sts'ailes Mission Statement", The Beating Heart: Sts'ailes Community Newsletter (December 2013), online: <http://www.stsailes.com>. Similarly, Borrows writes, "Many Indigenous peoples believe their laws provide significant context and detail for judging our relationships with the land, and with one another": Borrows, Canada's Indigenous Constitution, supra note 11 at 6.
(71) Nebi Bardhoshi, "Legal Dynamics in a Border Area: Between Customary Law and State Law" (2013) 1:3 Journal of Legal Anthropology at 314 at 329 (quote regards a minority population in Albania).
(72) James Anaya, "Indigenous Law and Its Contribution to Global Pluralism" (2007) 6:1 Indigenous LJ 3 at 6 [emphasis added].
(73) See e.g. John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002); John Borrows, Canada's Indigenous Constitution, supra note 11; Miller, Oral History on Trial, supra note 13; Darlene Johnston, The Taking of Indian Lands in Canada: Consent or Coercion? (Saskatoon: University of Saskatchewan Native Law Centre, 1989); Val Napoleon, "Delgamuukw: A Legal Straightjacket for Oral Histories?" (2005) 20:2 CJLS 123; Bruce Duthu, Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism (Oxford: Oxford University Press, 2013): Ghislain Otis, "Territoriality, Personality, and the Promotion of Aboriginal Legal Traditions in Canada" in Law Commission of Canada, ed, Indigenous Legal Traditions (Vancouver: University of British Columbia Press, 2007) 136; David Leo Milward, Aboriginal Justice and the Charter: Realizing a Culturally Sensitive Interpretation of Legal Rights (Vancouver: University of British Columbia Press, 2012), among many others.
(74) Christie, supra note 4 at 91. This is the case elsewhere, although not my focus here. See e.g. Leslie A Robertson & Kwagu'l Gixsam Clan, Standing Up with Ga'axsta'las: Jane Constance Cook and the Politics of Memory, Church, and Custom (Vancouver: University of British Columbia Press, 2012) at 403 (noting the insistence of Kwakwaka'wakw people to honour the laws of their potlatch).
BRUCE MILLER, Professor (UBC Department of Anthropology), PhD (Arizona State University, 1989), AB (Brown University, 1973).
|Printer friendly Cite/link Email Feedback|
|Title Annotation:||Law on the Edge|
|Publication:||University of British Columbia Law Review|
|Date:||Oct 1, 2014|
|Previous Article:||Still seeking justice: the Marshall inquiry narratives.|
|Next Article:||The sentencing of aboriginal accused with FASD: a search for different pathways.|