A HISTORY OF GITXSAN RELATIONS WITH COLONIAL AND CANADIAN LAW, 1858-1909 by Jeremy Williams B.A., University of Victoria, 1997 THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF ARTS in HISTORY copyright Jeremy Williams, 2000 THE UNIVERSITY OF NORTHERN BRITISH COLUMBIA All rights reserved. This work may not be reproduce in whole or in part, by photocopy or other means, without the permission of the author. UNIVERSITY OF NORTHERN BRITISt-1 COLUMBIA LIBRARY Prince George, BC II ABSTRACT In 1858 Governor Douglas passed into law a statute requiring that murder cases in British Columbia be resolved according to English law. This thesis addresses the Gitxsan First Nation's role in legal colonization to 1909, when the first permanent police station was established in their traditional territory of the Skeena river. It bases the inquiry on analysis of a series of case studies, including the Haatq case of 1884, the Skeena incident of 1888, and the Simon Gunanoot case, which were documented by British Columbia Sessional Papers, Attorney-General and British Columbia Police correspondences, and Gitxsan witness accounts recorded by Marius Barbeau. Colonial and provincial authorities successfully implemented English law in the upper Skeena area. Yet at the same time, Gitxsan resistance ensured that English law was not to have the total influence over homicide cases that it legally required. In the 1860's and 1870's, Gitxsan legal norms pertaining to homicides occurring on traditional territory continued to operate relatively unobstructed. By the 1880's this changed, however, when provincial authorities began to have greater influence than Gitxsan law over homicide cases, notwithstanding the Gitxsan's efforts to seek resolutions that respected the legal norms of both cultures. Indeed, their protests served only to convince local whites to lobby successfully for enhanced law enforcement, which took the form of a gaol and permanent constables stationed in the upper Skeena region in 1888. Following this development of local law enforcement, unprecedented numbers of Gitxsan "criminals" were prosecuted. Yet, the Gitxsan continued to preserve their traditional xsiisxw, or dispute resolution norms, in the 1890's and early 1900's. Their role in legal colonization helped to ensure that the gap between the theory of English legal hegemony in the upper Skeena area, and its practical realization, did not close altogether. Ill TABLE OF CONTENTS Abstract ii Table of Contents iii Acknowledgement iv Introduction 1 Chapter One: Gitxsan Culture Introduced Chapter Two: Initial Interventions: Legal Colonialism in the 1860s and 1870s Chapter Three: 20 Intrusion and Accommodation: The Cases of Haatq and Kamalmuk Chapter Four: 12 36 Local Canadian Law Enforcement and Cases of Gitxsan Response 58 Conclusion 80 Bibliography 87 IV ACKNOWLEDGEMENT 1would like to thank the staffs of the British Columbia Archives, the Canadian Museum of Civilization, the UNBC library, and the Gitxsan Tribal Office Library (especially Kathy Holland), for their help in securing research materials. I also greatly appreciate the sharp advice and example of my supervisor, Robin Fisher, and the candid feedback and guidance of my committee members, Bill, Antonia, and Jon. Many thanks to the Baldwin family for their financial assistance supporting students researching northern British Columbia history. Thanks to my parents, Cathy and David, and my brother Justin, for supporting me in all of my goals. Thanks also to my grandmother, Margaret, who graciously provided me with accommodation while I researched this project, and to John, for the leadership he has provided me for many years. And thanks to my friends and fellow students for their companionship and support. They provide special meaning to my time spent working on this thesis. Introduction 1 By the first decade of the twentieth century, English law with respect to homicides had become more influential among the Aboriginal tribes of northern British Columbia than Aboriginal law. This state of affairs was initiated by a process that began on November 19th, 1858, when English law was theoretically established in the new colony of British Columbia by a statute declared by Governor Douglas. 1 This thesis is concerned with one First Nation's responses to this legal colonization process, those of the Gitxsan First Nation of the upper Skeena region. Gitxsan responses and their consequent influences on the legal colonization process varied within the tribe according to House and village loyalties, as well as Christian affiliation. Moreover, they tended to respond to legal interventions in an ad hoc rather than an organized way, reserving their most energetic protests for the land question. Yet, this thesis discerns patterns from the evolution of their interactions with legal colonialism. The thesis argues that between 1858 and 1909, the balance of legal influence over homicides involving Gitxsan people shifted dramatically in favour of English law. The government worked to put into force Douglas's 1858 statute, which stipulated that English law, and only English law, was to deal with homicide cases as defined by the Crown. At the same time, English law was not to have the full effect on the Gitxsan's attitudes towards these kinds of incidents that it legally required .2 In the 1860s and 1870s Gitxsan law maintained a relatively unobstructed influence over homicides ' involving Gitxsan people, but by the 1880s the balance of legal influence shifted in favour of English law, despite the Gitxsan's desire for the two laws to coexist. The Gitxsan tended not to protest governmental jurisdiction over homicide cases, but they 1 Proclamation. Having the Force of Law to Declare that English Law is in Force in British Columbia, Governor James Douglas, 19 November 1858. 2 1bid. 2 did use traditional blockades and asserted their laws when faced with unacceptable legal outcomes or verdicts, such as the death of one of their own. They were willing to tolerate English law in principle, but not when it led to resolutions that deviated too far from their ideas of justice. Their overt protests largely proved fruitless, however, and served only to convince local whites to lobby successfully for enhanced law enforcement, which took the form of a gaol and permanent constables stationed in the upper Skeena region in 1888. Following this development of local law enforcement, unprecedented numbers of Gitxsan "criminals" were prosecuted. Perhaps the majority of Gitxsan began to see Canadian law as a useful means of settling their disputes with other nations as well as each other. Yet resistance continued in adapted form . Some Gitxsan resorted to covert preservation of their traditional xsiisxw, or dispute resolution norms. The example of the fugitive, Simon Gunanoot, demonstrates the Gitxsan's willingness and ability to supply and otherwise protect a Kispiox accused murderer escaping capture. In short, the Gitxsan's role in legal colonization helped to ensure that the gap between the theory of English legal hegemony in the upper Skeena area, and its practical realization, did not close altogether between 1858 and 1909. This Introduction will first put the Gitxsan's interactions with legal colonialism in historical context. It will do so by briefly outlining the role of British Columbia Indian policy in legal colonization. It is also important to address the role of the transition from the fur trade to colonial eras in legal colonization, to show that legal colonization in the upper Skeena area must be understood as part of a process that affected many frontiers around the world, and, to discuss the relevance of the thesis to historiography and current challenges facing the Gitxsan. Douglas's 1858 statute was applied in the upper Skeena river through Indian policy that received its impetus from the Colonial Offiee in London. British Columbian officials were required to "pay every regard to the interests of the Natives which an 3 enlightened humanity can suggest" and use "the best means of diffusing the blessings of the Christian Religion and of civilization among the natives."3 London officials realized that it was up to Governor Douglas and his successors to interpret how this mandate should be visited upon the Native population, though it was understood that they would do so through asserting English law and order. The Terms of Union in 1871 were not to change this division of responsibility, and enforcement of Canadian criminal statutes tended to be left to the British Columbia Police, with the exception of interventions by some Indian agents. 4 Faced with severe limitations of human and otner resources, governors, and the premiers who succeeded them, assumed jurisdiction over Aboriginal homicides on an ad hoc basis, dealing with individual cases as they occurred. 5 This is why the documentary record relating to legal colonization in the upper Skeena region pertains to individual incidents. Naturally, these cases were shaped and sometimes instigated by the context of friction created by the transition from fur trade to colonial era. Racial tension had not been as pronounced during the fur trade as during the colonial era. For one thing, Hudson's Bay Company trade routes had enhanced the Gitxsan's economic fortunes. 6 For another, the few transient whites who came into the area tended to follow the Gitxsan's rules and norms for regulating economic relations. Disputes between Gitxsan and Company traders tended to be resolved along traditional compensation or blood vengeance lines rather than through English law. With the relegation of the fur trade to second place after mining in the non-Native economy after 1858, accommodations and reciprocal relations between Natives and whites did continue. 3 Sir E. Bulwer Lytton (sec. of state, colonies) to Douglas, 31 July 1858, in British Columbia. Papers Connected with the Indian Land Question. 1850--1875 (Victoria, 1875), p. 12, cited in Barry Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians. 1846·90. (Vancouver: University of British Columbia Press , 1984), p. 77. 4 Minutes of the Executive Council of British Columbia Relative to the Indian Troubles on the Skeena River and the Expenses of the Expedition Sent to that Locality, BCA, GR 1108, Box 1, File 1. 5 Gough... p. 77. 6 Robert Galois, "The History of the Upper Skeena Region, 1850 to 1927," Native Studies Review, no. 2, (1993-1994), pp. 120. 4 For example, the Gitxsan permitted the Skeena river to accommodate supply routes giving life to the Omineca, and some even participated in the new economy. For their part, miners, like their predecessors, hired Gitxsan packers and guides, and the Gitxsan's traditional land use patterns and trading relations between villages and with other nations were changing but continued relatively unobstructed.7 But the gold rushes to the Fraser river (1858), Omineca Mine (1870), and the Klondike and Lorne Creek mines brought with them an expanded and diversified white presence, a presence that was generally disrespectful of the Gitxsan's attempts to control territorial access. Accompanying this was the Hudson's Bay Company's decision to adjust trading routes in a way that marginalized Gitxsan participation. The measles epidemics intensified the sense of loss of control as large portions of the Gitxsan population died during the 1860s and 1870S.8 Some tried to cope with these changes by welcoming missionaries, whose presence arguably sowed further divisions in the Gitxsan's struggling communities. Close on the heels of these changes was the Collins Overland Telegraph line (Kispiox to Quesnel) and the small number of settlers it brought, who helped to make Hazelton the new hub of economic activity in the area. As Robert Galois puts it, tensions between the G itxsan and the newcomers grew as the "scale and frequency of Indian-white interactions increased".9 These tensions influenced a number of homicides that required governmental intervention, and the protests that this involvement engendered. Settlers often were convinced that their lives and property were at risk, inciting them to petition the government to enforce their ideas of law and order and to protect their economic futures. In turn, the government tended to comply, sometimes with more permanent local enforcement measures, other times with more decisive action in the matter at hand. Legal interventions in 1884 and 1888, the establishment of local law ! Galois, pp. 113-183. 8 9 lbid., p. 119. lbid., pp. 113-183. 5 enforcement in 1889, and the advent of the police station in 1909, followed threatened "uprisings" and subsequent pressure from local miners or settlers. In this manner, the Gitxsan increasingly were caught between the pressures of legal colonization and settlement. English law thus secured the balance of influence over homicide cases on Gitxsan territory, and did so with a degree of compliance and without open warfare. It is important to appreciate that the power shift on the upper Skeena region occurred in the context of a larger shift in power from First Nations to the newcomers. This is why efforts by the state to replace First Nations' methods of dispute resolution with the state legal system will be referred to as "legal colonialism ." "Colonialism" acknowledges that English law and order affected the Gitxsan as a part of the broad colonization process through which the Europeans extended their influence around the globe. In Australia, New Zealand , and the western United States, indigenous peoples came under increasing pressure to conform to the state's law. The Gitxsan felt this pressure on the upper Skeena in terms of a variety of interconnected changes, the law being only one part. The term "legal colonialism" reflects that the Gitxsan became familiar with the state's law in the context of nineteenth century colonialism that shifted the balance of power in favour of the newcomers. Many scholars have addressed the role of English law among First Nations, but, few British Columbia historians examine one First Nation's relationship with the common law over a long period. Those that do, fail to inquire into whether or not Aboriginal law continued to resolve conflicts past the advent of local state law enforcement. Hamar Foster examines many nineteenth century cases in which Hudson's Bay Company and colonial authorities tried First Nation people for killing members of tribes other than their own, without showing how individual tribe's experiences with English legal interventions changed over the years.10 Nor does Barry 10 Hamar Foster, "'The Queen's Law is Better Than Yours': International Homicide in Early British Columbia," Essays in the History of Canadian Law. Jim Phillips, Tina Loo and Susan Lewthwaite (eds.) (Toronto: University of Toronto Press, 1994), pp. 41-111 . 6 Gough address one First Nation in depth, when arguing that the superior military capacity of the colonial government forced Native cultures to accept British law and order.,, Tina Loa's theoretical discussion of the role of laissez-faire liberalism in bringing British law to Aboriginal communities is also different from the focused approach taken by the thesis, because she addresses many First Nations rather than detail the experiences of one. 12 Legal historians who do focus on the experiences of individual First Nations tend to emphasize specific incidents rather than the tribe's long-term experiences. For example, Doug Harris, 13 Keith Carlson, 14 and Edward Hewlette15 each concentrate on aspects of a single First Nation's relationship with legal colonialism, but inquire into only relatively brief time spans, no more than one year, and usually incidents of one day or less. Analyzing the evolution of the Gitxsan's interactions with the state's legal apparatus into the twentieth century reveals a 1onger span in legal colonialism's development than that addressed by the shorter term studies, and provides a level of detail missing from the broader analyses of Gough and Loo. This approach has its advantages, allowing deeper consideration of how the Gitxsan's culture influenced the process and continued past the advent of local Canadian law enforcement. L Another contribution of the thesis is that it reveals characteristics of British Columbia that separate it from other regions. There were significant differences between the American West and British Columbia in the nineteenth century. The American West was characterized by open warfare, and among the Cherokee, for example, mixed-blood leadership facilitated the decision to formally forego traditional "Barry Gough, Gunboat Frontier: British Maritime Authority and Northwest Coast Indians, 1846-1890. (Vancouver: UBC Press, 1984). 12 Tina Loo, "Tonto's Due: Law, Culture, and Colonization in British Columbia," Making Western Canada: Essays on European Colonization and Settlement. Catherine Cavanaugh and Jeremy Mout (eds.) (Toronto: Garamond Press, 1995), pp. 62-103. 13 Douglas Harris, "The Nlha7kapmx Meeting at Lytton, 1879, and the Rule of Law," BC Studies, no. 108, Winter, (1996), pp. 5-25. 14 Keith Thor carlson, "The Lynching of Louie Sam," BC Studies. no.109, (1996), pp. 63-79. 15 Edward Sleigh Hewlette, ''The Chilcotin Uprising of 1864," BC Studies, no.19, (1973 ), pp. 50-72. 7 blood vengeance for the American legal system .16 The Gitxsan never went through such a formal decision making process. The attitudes and responses of various villages and families must be inferred from their actions, not records left by the formal development of a hybrid tribal-common law system . These qualitative differences between the regions suggest fundamental distinctions between their respective experiences with legal colonization that warrant a different approach to British Columbia. It is curious that a history of the continuity of Gitxsan traditional law in particular is not discussed in the literature, considering that scholars writing of Gitxsan history do address the post-nineteenth century continuity of non-dispute resolution components to their culture. Since the Gitxsan were one of the most prominent First Nations of northern British Columbia, scholars have written a great deal about them over the last half century. For example, John Darling has argued that the Gitxsan land tenure system lasted well past 1900, 17 and Robert Galois addresses the preservation of the feast and the continued protests over land expropriation up until 1927. Hamar Foster addresses "international" homicide cases (including those connected with the Gitxsan) occurring during the nineteenth century, noting that native groups "must have been dismayed" to find that colonial authorities did not share their ideas of compromise when it came to which cultures' law should prevail over murder incidentS. 18 And yet the continuity of the Gitxsan's traditional dispute resolution mechanisms remains to be addressed. The thesis makes up for this shortcoming in the literature. In addition to contributing to historical understanding of British Columbia history for its own sake, the detail and scope of the thesis provides a unique angle on current challenges facing the Gitxsan. Emphasizing the Gitxsan, rather than the experiences 16 Michelle Daniel, "From Blood Feud to Jury System; the Metamorphosis of Cherokee Law from 1750 to 1840," American Indian Quarterly, Spring, (1987), p. 115. 17 John Davidson Darling, "The Effects of Culture Contact on the Tsimshian System of Land Tenure During the Nineteenth Century," MA thesis, U.B.C., 1955. 18 Foster, pp. 41-111 . 8 of First Nations across British Columbia as do other scholars of the legal colonialism field , should allow insights specific to the Gitxsan that will inform understanding of the current "decolonization" process that they are facing. History, after all , is about finding meaning in the past, and there is no better way to do this than to put current challenges in proper historical context. Today, the Gitxsan Health Authority's efforts to deal with the failure of the criminal justice system to mitigate crime on their reserves include plans to devolve primary responsibility for justice administration from the federal government to their traditional House system .19 This "Peace and Justice: FiveYear Plan" was designed to "allow the dispute resolution laws and methods of the Gitxsan and Wet'suwet'en people to interact with the provincial justice system in a way that does not undermine the integrity of either."al Inquiring into how the Gitxsan responded to law enforcement in the nineteenth century, and persevered with traditional mechanisms into the twentieth century, will help provide historical context to these current events. For a start, the thesis shows how "Peace and Justice" is the latest in a long line of assertions of traditional justice mechanisms. This codification of traditional laws in a form palatable to both the Gitxsan and the provincial government marks the culmination of the efforts of both parties. But the thesis suggests that it can be best understood as the result of the Gitxsan's historic political and legal efforts to negotiate a strategy for coexistence with the Canadian legal system, efforts rooted in the nineteenth century. In many ways, "Peace and Justice" is really about the Gitxsan's efforts to reassert the traditional rights required to revitalize a sense of well-being among the people and the health of the community (hence : restorative justice). It is part of a broad range of measures that also include the now well known case Delgamuukw v British Columbia. This thesis addresses this measure as well, assessing evidence provided 19 Unlocking Aboriginal Justice," unpublished proposal , p. 2. ~ Ibid. , summary. Note that Unlocking Aboriginal Justice is incorporated into the Peace and Justice plan. 9 by defence counsel, entitled,"The Imposition and Acceptance of Law and Order Within the Claim Area." Among other things, the author of this document, David Ricardo Williams, argues that the "Indian population" submitted to the legal and political power of the white community, and did not substantially resist "the introduction of white men's law." He also argues that no evidence suggests that the "native people" had political or legal sovereignty in the "claim area" (upper Skeena). 21 He predicates his point on documents showing that Gitxsan chiefs and regular Gitxsan individuals overtly expressed their acceptance of Canadian legal jurisdiction over their disputes, and, participated in the new legal system, as defendants, plaintiffs, accused, and special b .~ That Williams's argument was put forward by a lawyer rather than an historian, and in the context of a case, has obvious implications for the validity of his historical account. Zl His opinion piece is intended more to advance the cause of the defence than to attempt an objective understanding of the past. He does not consider whether or not the Gitxsan resisted legal colonialism through continuing to use traditional legal mechanisms in instances where Canadian legal officials claimed jurisdiction. This resistance to the "white man's law" would be relevant to whether or not Gitxsan legal sovereignty existed, and, if it did, whether or not it successfully competed with the Queen's sovereignty. This thesis demonstrates that the Gitxsan people did not "accept" Canadian law in numerous instances between 1889 and 1909. In other words, the thesis refutes the argument put forward by the defence that the Gitxsan did not substantially resist "the introduction of white men's law."24 In doing so, the thesis will be relevant to judgments following a reconstitution of the Delgamuukw case. 21 David R. Williams, Q. C., "Imposition and Acceptance of Law and Order Within the Claim Area : Summary of Opinion Evidence ," court evidence, (March, 1987), p. 1. 22 lbid., pp. 12-52. 23 Robin Fisher, "Judging History: Reflections on the Reasons for Judgment in Delgamuukw v. B.C.," BC Studies, no. 96, Autumn (1992), pp. 43-54. 24 Williams, pp. 12-52. 10 It is difficult to overstate the legal and political effects of Delgamuukw. Certainly the case has reached the minds of the popular press and the Canadian public.25 But its greatest significance can be found in its implications for judicial and negotiated land claims settlements. While the Canadian Supreme Court ruled that the British Columbia Supreme Court would have to make the final judgment in Delgamuukw, it also suggested that the G itxsan could win back their traditional land, and the cultural recognition required to manage it according to the House system. The Court also ruled that Aboriginal title had not been extinguished implicitly by provincial legislation in British Columbia, and exempted First Nation oral traditions from the hearsay rule, enabling the Gitxsan to prove their claims to title in court. The ruling enhanced the chances of success of other potential and active First Nation litigants in British Columbia, improving First Nation's bargaining positions in negotiations.:!) The thesis relies upon a variety of documentary sources, including British Columbia Sessional Papers, Attorney-General correspondence, British Columbia Police records, Sabine Agency records, and British Columbia and Hazelton newspapers, such as the Hazelton Post and the Victoria Daily Colonist. These archival sources serve as a rich source of understanding of Gitxsan behaviours and attitudes towards Canadian law. Correspondence between the Attorney-General and British Columbia Police superintendents, as well as their local police and Indian agent counterparts, show the actions and underlying rationale for the government's handling of Gitxsan uprisings in 1884 and 1888, while petitions provided by the Gitxsan themselves reveal how their authors perceived these interventions, and just how far they were willing to go in accepting English law. Marius Barbeau's Northwest Coast Files includes an immense volume of oral accounts provided mostly by Gitxsan people 25 For example, Time Magazine, "VVhose Home And Native Land?", Toronto: (15 February, 1999), p. 19. Premier Glen Clark, M.L.A. Vancouver-Kingsway, "Official Report of Debates of the Legislative Assembly [Excerpt], " Province of British Columbia, 3rd Session, 36th Parliament. Monday, December 14, 1998, Afternoon Sitting. 26 11 and a few whites who witnessed various police actions and incidents after the 1850s. These oral sources, as recorded with the aid of William Beynon, go a long way in representing Gitxsan perspectives. A similar contribution is also made by Gitxsan accounts provided in Diamond Jenness's files . Efforts were made to interview Gitxsan informants, but no one was found willing to discuss events not already well represented by these recordings. While not being a truly balanced inquiry, the thesis fully exploits the first and second hand indigenous perspectives preserved by reliable European recorders. Chapter One 12 Gitxsan Culture Introduced On the premise that appreciating the nature and results of Gitxsan responses to legal colonialism requires an understanding of how their traditional House system influenced their decisions, it is important to draw on ethnographies, missionary accounts, and traditional oral history, the ada'ox, to construct such an understanding. This chapter will begin by outlining the Gitxsan's geographical and historical relations with their Aboriginal neighbours, and will then address the Gitxsan's social organization, chiefs, spiritual beliefs, and feasts. Lastly, Chapter One will describe the Gitxsan norms that regulate disputes within and between families, villages, and tribes. The Gitxsan are a Tsimshian people who live between one hundred and four hundred kilometres inland from the mouth of the Skeena river. They live in several villages on the river, including, among others, Kispiox, Kuldo, Kisgaga'as (Kisgagas) , Kitsegyukla (Gitsegukla) , Kitwancool (Gitanyow), 1 Gitwangak (Kitwanga), and Hazelton (Gitenmax). Although united by culture and language, each village tended to operate as an "independent territorial, economic, and political unif' in the nineteenth century.2 In the twentieth century, the Kitwancool have pursued land claims separately from the rest of the Gitxsan and remained independent from common Gitxsan organizations. 3 To the southeast are the Wet'suwet'en, with whom the Gitxsan jointly pursued Delgamuukw v. British Columbia, and with whom they share cultural similarities and marriage ties, although they are separated by language (the Wet'suwet'en speak an Athapaskan language) and social identity.4 In the nineteenth century, the Tahltan and Tsetsuate people, quite different from the Tsimshian nations culturally and 1 Neil Sterritt, with Robert Galois, Peter R. Grant, Susan Marsden, Richard Overstall, Tribal Boundaries in the Nass _. Watershed , {Vancouver: UBC Press , 1998), p. 23, p. 73. 2 Margaret Seguin, The Tsimshian : Images of the Past, Views from the Present, {Vancouver: UBC Press, 1993), p. x. 3 Neil Sterritt, et al , p.5. 4 John W. Adams , The Gitksan Potlatch: Population Flux. Resource Ownership and Reciprocity, {Canada : Holt, Rinehart and Winston of Canada, Limited , 1973), p.5. 13 linguistically, possessed territories extending eastward and northward of the Gitxsan, including parts of the Stikine ri\(er watershed and the upper Nass river. 5 Northeast and northwest along the Nass river live the Nisga'a, while the Coast Tsimshian reside to the west. The Nisga'a, Coast Tsimshian, and Gitxsan are often referred to as "Tsimshian" people because they share similar dialects, culture, and legal traditions, although they have always maintained political independence form one another. 6 Well into the colonial period, the Gitxsan enjoyed sophisticated economic relationships with these neighbours, especially the Nisga'a. Russian, American, and English traders, who arrived at the end of the eighteenth century, traded primarily with the Coast Tsimshian, through whom goods found their way to the Gitxsan villages. 7 Conflicts between these Aboriginal groups over marriages, lands, and murders were not uncommon, but were managed by a jointly recognized compensatory system that resolved disputes and usually prevented widespread deaths or economic disturbance. s The Gitxsan do not-have "institutions which can be viewed as discretely political, economic, domestic, or spiritual ; rather, their institutions simultaneously perform a multiplicity of functions."9 Yet they are united by a common linguistic and cultural identity. Each village has its own independent "territorial, economic, and political unit", with its own ayuks (crests) and totems. 10 Villages are further organized into wilps (Houses), which are the central organizational unit of Gitxsan society. Each village has wilps of Fireweed, Frog, Raven, and Wolf, which also have their own ayuks and totems_,, Clans are also a significant part of Gitxsan society, but they have a less 5 Sterritt, et al , p. 5, pp. 255-256. " Adams , p.5. 7 Clarence Bolt, Thomas Crosby and the Tsimshian: Small Shoes for Feet Too Large. (Vancouver: UBC Press , 1992), p.15. 8 Sterritt, et al. , p. 5. 9 Gisday Wa and Delgam Uukw, The Spirit In The Land : Statements of the Gitksan and Wet'suwet'en Hereditary Chiefs in the Supreme Court of British Columbia, 1987-1990, (Gabriola: Reflections , 1992}, p. 30. ~ Seguin, p. x. 11 Bolt, pp.5-6. 14 prominent role than wilps because wilps have rights to territory. Ayuks provide a visual record of the major historical events experienced by the ancestors of this group, while ada 'ox provide the oral record of the wilp 's history.12 At feasts these ayuks are displayed prominently, and the ada'ox are performed as well, to remind the people of their origins and history, and to signify and enforce the wilps apportioned title over the village territories. The ada 'ox, ayuks, and songs represented the wilps "spirit power," or daxgyet. 13 Garfield and Wingert argue that the "Gitxsan did not have the wealth of the coastal tribes and therefore did not place much emphasis on chief's positions. They had no tribal [viilage] chiefs." 14 Wilp chiefs, however, wield extensive powers over a broad range of matters, once they accede to their chiefly name. 15 Each wilp chief has "the right to control access to his territory, and to manage the resources taken there," and his authority extends to "salmon fishing sites, hunting grounds, and berry patches" in particular. 16 The wilp chief is expected to allocate rights to use resources to his wilp members, and even to non-wilp members as required .17 Other duties include his responsibility to protect the wilp's production components, including skills, labour, and the resources themselves, in order to secure high living standards for wilp and friendly non-wilp members. Protection at times involves mitigating competing claims from other wi/ps, and, maintaining reciprocal relations with the spirit world , including animals, fish, and the land itself. 18 There may not have been a central Gitxsan or village chief in the nineteenth century, but no ideal required that all of the wilp chiefs share power equally: "one local lineage segment often held the highest ranked names and 12 Gisday Wa and Delgam Uukw, p. 25. lbid. , p.26. 14 Viola E. Garfield and PaulS. Wingert, The Tsimshian Indians and Their Arts. (Seattle and London : University of Washington Press, 1966), pp. 34-35. 15 Gisday Wa and Delgam Uukw, p. 32. 16 Sequin, p. xii. Sequin's argument is made in the context of discussing the "Tsimshian", with whom she includes the Gitxsan, Nisga'a, Haida, Tlingit, and Southern Tsimshian. 17 Gisday Wa and Delgam Uukw, pp. 30-32. 18 lbid ., p. 33. 13 15 controlled a larger territory." 19 Underlying chiefly authority and the wilp system is a spirituality that legitimizes and directs most other aspects of Gitxsan society. The relationship between the spirit world and other aspects of the culture-- hunting, the wilp system, authority, dispute resolution-- is complex, and is not fully determined in the literature. What is clear is that spiritual forces influence nearly all aspects of how the Gitxsan interact with each other and view the world. For example, misfortunes are attributed to mismanagement of relations with the spirit world, and the actions of people who engage in destructive behaviour are attributed to evil spirits, which are to be tamed and mitigated through naxnox performances at the feasts. Naxnox is the spirit power that Chiefs inherit, along with their Chiefly name and wilp crests, to deal with negative forces. They do so by taking on a naxnox name and properly dispensing with their responsibilities to the wilp: for example, enforcing reciprocal relations with the hunted animals of the wilp 's territory. These animals live in a human form in the spirit world, and are therefore very aware, intelligent beings who give of their lives willingly to the hunter.aJ The Chief might arrange for gratitude to be expressed in a feast, and ensure that proper hunting practices are followed. This responsibility goes to the Chief because as the personal embodiment of the wilp, and the one with the most spirit power invested in his wilp, he is to represent the wilp to the spirit world. 21 This is but one example of many kinds of spirit forces and the ways they are negotiated.22 If spirituality is the force that directs and validates Gitxsan life, the feast is the primary institution with which spiritual life is expressed and managed. Like other Gitxsan institutions, feasts continue to be "one and at the same time political, legal, 19 Seguin, p. xii. Sequin's argument is made in the context of discussingJhe "Tsimshian", whom she includes the Gitxsan. Nisga'a, Haida, Tlingit, and Southern Tsimshian. 20 Bolt, pp.12-13. 21 Gisday Wa and Delgam Uukw, pp. 32-34 22 Adams , pp. 43-47 for a more complete description of the function of various kinds of naxnox in Gitxsan society. 16 economic, social , spiritual, ceremonial , and educational." Zl Members of other wilps and villages are invited to come to exchange gifts, which the chief gives away as an affirmation of his status and wealth. Social ties are renewed and affirmed , evil spirits are appeased, new Chiefs are proclaimed, and the ada 'ox are told at the various kinds of feasts : funeral, pole-raising, and headstone feasts to name a few. The songs, dances, and ayuks used in the feast to perform these various functions give it special significance in the spirit world. The ada 'ox and the feast principally deal with spiritual matters: recording origins and attributing mythical or supernatural meaning to things in a way that fulfills psychological needs and functions. In the nineteenth century, these aspects of Gitxsan society informed both their dispute resolution goals and means, and the way in which they contextualized and understood conflict. The apparent sources of conflict in Gitxsan society were the same as what one might expect elsewhere. Sharply defined acts such as homicide, forced sexual contact, accidental death, as well as discreet disagreements over inheritances and titles, disrupted the normal routine and threatened group stability. However, the way in which these conflicts threatened to ripple outwards to affect the broader community were more pronounced among Gixsan society than in Western cultures. Any dispute or altercation between individual members of different groups (wilps, villages, or tribes) were understood by the whole community as being a matter to be mitigated by both sides. There were no 'legalistic' distinctions made between individuals "directly involved" in the conflict and the culpable groups. Arguably, this followed from the fact that Gitxsan society was essentially non-hierarchical: chiefs could mediate and persuade at informal discussions, but in the eyes of the people, they were not invested with the authority to control members of the involved groups or otherwise enforce the peace. Even the pre-eminent village or wilp chiefs did not have executive powers. In the absence of any central authority, social order was ultimately 23 Gisday Wa and Delgam Uukw, p. 31 . 17 preserved via the groups most directly involved. As such, in instances where the offender and the aggrieved party were from different wilps but the same village, the offender's wilp was liable for the offender's deed, and the aggrieved wilp was responsibie for preserving the dignity of the victim. 24 Individuals were deterred from inciting grievances by the knowledge that they would be accountable to their fellow wilp members. Because the wilp was the basic organizational component of the community, this principal of collective responsibility/liability worked outwards but not inwards. The same rules applied to conflicts between members of different wilps, villages, and tribes, but not within the Western concept of the nuclear "family." Tile primary means of restoring balance between the groups was through the transfer of compensation from the liable to the aggrieved party. According to a Gitxsan sub-chief, Neil Sterritt, this system was called xsiisxw. Sterritt writes: "compensation for the accidental death of an individual might involve a gift of material wealth ; for the murder of an important chief, it might involve the transfer of territory for the lifetime of the immediate family of the deceased; and for a series of unprovoked attacks on a neighbouring nation, it might involve the permanent transfer of territory to the innocent . ~ Violent conflicts within wilps were rare because members were extremely careful to minimize discord. 26 Chiefs would mediate disputes between wilp members, 27 although informal social sanctions and the likelihood of disapproval was probably enough to prevent intentionally aggressive behaviour. According to Drucker, even when violence or death did occur among wilp members, "usually nothing was done about it", as the group would not exchange compensation or take vengeance upon itself, although Drucker does admit of persons being killed by persons of their own wilp 24 Terms such as "victim" and "criminal" are culture bound , but in most conflicts , there is a recognized offender and aggrieved party. 25 Sterritt, et al. , p. 13. 26 Philip Drucker, Cultures of the North Pacific Coast. (United States : Chandler Publishing Company, 1965), p.74. 27 Gisday Wa and Delgam Uukw, p. 33. in those rare cases of witchcraft or clan incest. 25 18 If the goal of indigenous law was to act as a network of defences against ongoing strife, the inter-group methods were somewhat less constructive. The process of compensation negotiation often broke down because it was fraught with obstacles. The offended group tended to demand extravagant amounts of compensation in order not to devalue the victim, while the liable group aimed not to offer so little as to insult the victim's group, but not so much as to signal fear of them .Zl Sometimes, in the case of homicide, when adequate compensation was not forthcoming, the offended group would resort to blood vengeance by taking the life of a member of equal status from the other group.:I) Usually, the other group would retaliate in kind, and a blood feud would result. After deaths on both sides, negotiations would again be attempted and compensation secured, with or without the aid of a third party. Relations were normalized only as both sides were fairly confident that a fair resolution had been reached. The final resolution, whether between wilps, villages, or tribes, came as the settlement was recorded in ada 'ox at a feast at which all parties involved attended. 31 The ada 'ox and the feast thus offered ways of entrenching peace agreements. They also presented knowledge of a spiritual perspective on.the discord. If this process was somehow disrupted, one or both parties would remain aggrieved for long afterwards, possibly responding in clandestine ways. At the very least, social and economic relations might suffer. These aspects of Gitxsan culture inform the remainder of this -inquiry. Knowledge of what actions constituted a "crime", who was liable, and how the dispute was to be resolved, contextualize the nature of the disputes in the proceeding case study analyses. Disputes during the colonial period, such as the burning of Gitsegukla 28 Drucker, p. 74. Ibid. , p. 73. 30 Depending on the viewpoint of the group, this act of vengeance would be considered a means to securing deserved compensation {life for a life} , or an act of aggression by the attacked group. 31 Gisday Wa and Delgam Uukw, p. 31 . 29 19 (1872), killing of Haatq (1884), and shooting of Kamalmuk (1888) were fundamentally shaped by customary expectations of what constituted justifiable killing and recompense. Furthermore, understanding the degree to which, and ways in which, governmental legal interventions, and the "resolutions" that they produced, were consistent with Gitxsan law require an understanding of Gitxsan culture. Additionally, the variations in responses to legal interventions among the tribe were often predicated upon the cultural factors described above. Although the archival sources used in this inquiry make it impossible to fully explore every way in which Gitxsan culture shaped the evolution of legal colonialism, enough knowledge follows from the secondary literature heretofore reviewed to facilitate a strong understanding of the Gitxsan side to the story. Chapter Two 20 Initial Interventions: Legal Colonialism in the 1860s and 1870s There is not much known about the nature of local law enforcement in the upper Skeena area before the 1880s. But evidence suggests that English law established a slight but permanent influence over homicide cases in 1872, although Gitxsan law continued to have the balance of influence over domestic killings. As a result, English law among the Gitxsan of the upper Skeena remained confined largely to a theoretical presence. Chapter Two begins by demonstrating that the first major legal intervention to influence homicides involving Gitxsan people came in 1872, following the burning of Gitsegukla village. Then the discussion demonstrates how the settlement of this dispute reveals that Gitxsan law still had the balance of influence in the upper Skeena region. The lack of English legal influence over homicides is further suggested by the absence of a significant local constabulary. Lastly, homicides involving Hydagh and Thomas Hankin show that Gitxsan law maintained a significant influence even over killings involving whites. English law was present, but not very secure. Before 1872, English law had few, if any, major effects on the Gitxsan population. It could be argued that an 1869 governmental legal intervention affected the Gitxsan's sense of law and order, but examination of the case reveals otherwise. In that year, Chief Commissioner of Lands and Works Joseph Trutch recorded a firsthand account of an incident in which British Columbia Governor Seymour secured a written agreement binding the Coast Tsimshian and Nisga'a to "henceforth live according to English law." 1 Because the agreement did not pertain to the Gitxsan, it seems unlikely that it had much effect on the way theGitxsan conceptualized Joseph W. Trutch, Report and Journal by the Hon. The Chief Commissioner of Lands and Works, of the Proceedings in Connection With the Visit of His Excellency the Late Governor Seymour to the North-West Coast in Her Majesty's Ship Sparrowhawk, (Victoria: Government Printing Office, 1869). 1 21 homicide. While the agreement seems to have had a lasting influence on the Nisga'a's inter-tribal conflicts, it followed from a blood feud that had nothing to do with the Gitxsan, nor were Gitxsan present at its signing.2 Furthermore, Trutch provides no indication that it necessarily had any effect on tribes other than the Nisga'a and Tsimshian .3 Government officials tended to recognize the Gitxsan as a politically and geographically distinct people who resided several hundred kilometres from the Coast Tsimshian and Nisga'a. Trutch was no exception in this regard, distinguishing between the Gitxsan and their neighbours in a subsequent legal intervention by gunboat. 4 That being stated, it is conceivable that since the Nisga'a had agreed to forego their blood vengeance norms, any future conflicts between themselves and the Gitxsan were not resolved according to this custom. Perhaps disputes between these tribes were influenced by the imperatives of English law, or resolved with the help of a local government official. Theoretically, agreements to abandon inter-tribal dispute resolution mechanisms would thereby pressure other tribes not directly involved to come to terms with colonial law. However, this influence remains pure speculation. Therefore, it is reasonable to assume that the signing of the Nisga'a-Seymour agreement in 1869 did not constitute legal colonization of the Gitxsan. Moreover, evidence suggests that the Gitxsan had not yet come under significant legal influence by 1869 through means other than the Nisga'a-TsimshianSeymour agreement. In Trutch's 1869 report, he states that questions of law and sovereignty were indeed still to be 'settled' at Bella Coola, a region approximately five hundred kilometres south west of the headwaters of the Nass and Skeena rivers and Gitxsan territory.5 Apparently, settlers had requested law enforcement in the wake of 2 Marius Barbeau and William Beynon, recorders , "Recent Tsimshian Warfare (1868)," Tsirnshian Narratives 2: Trade and Warfare, pp. 236-238. 3 Trutch, Reoort and Journal. 4 Robert Galois, "The Burning of Kitsegukla, 1872," BC Studies, no. 94, 1992, pp. 59-81. 5 Robin Fisher, Contact and Conflict: Indian-European Relations in British Columbia,1774-1890, (Vancouver: UBC Press, 1977), p. xxx. 22 the murder of an interior man, at the hands of either visiting or local First Nation people. Their requests were not to be satisfied, however, on the basis that "it is impossible to exercise any supervision or control over either Indians or white people at such remote posts." 6 This was a clear abdication of governmental responsibility that went against the grain of stated policy at home and in London. It was also a blunt statement of the practical difficulties in imposing law and order in a northern region closer to established centres of white control than the Skeena river. If law and order was not being enforced in Bella Coola, it seems unlikely that it would have had much of an effect on the Gitxsan. Trutch states that Metlakatla Mission, which was near the mouth of the Skeena river, had a "humanizing influence on the surrounding savage tribes, tending directly to the discontinuance of barbarous customs such as have given rise to the outrages and disturbances now under reference." 7 But he concludes that "it is evident that the very remoteness alone of such posts renders efficient protection a matter of much practical difficulty and in many cases entails on the Colonial government considerable embarrassment and pecuniary outlay." 8 It was difficult to enforce the law at Metlakatla because it required emergency efforts of the government, which revealed the weakness of colonial law in the northern reaches of the colony. Indeed, the fact that "such posts" required governmental protection at all suggests that they had a marginal ability to enforce law and order even amongst neighbouring tribes. Additionally, the fact that traditional xsiisxw involving open warfare among several major tribes of the Skeena river continued at least into the 1860s suggests that English law had a marginal influence, if any at all, during that decade. An example is a xsiisxw that occurred at Meziaden Lake in 1861 and that is still discussed among Gitxsan elders today. In this event, the Nisga'a Head-Chief, Hlidax, killed a Tsetsaut 6 Trutch, Report and Journal. lbid . 8 lbid . 7 23 man named Saniik and his son. Mutual suspicion had sabotaged attempts to forge a trading relationship when they met hunting at Smailx (near Portland Canal) .9 When the Tsetsaut took revenge against Hlidax's relatives of the Nisga'a House of Gitlaxdamixs, at Meziaden Lake, they inadvertently killed two Gitinyow chiefs, Taxawok and Ligigalwil. 10 Recognizing their mistake, the Tsetsaut "attempted to make peace with the Gitinyow by offering them compensation. However, their efforts were futile, and resulted in bloodshed. When the Gitinyow were travelling to Awiijii to conclude the agreement with the Tsetsuat, they decided to kill their Tsetsaut guides, suspecting them of treachery_,, Relations seem to have been relatively uneventful for approximately seven years. Then, the Tsetsuat returned to camp at Meziadin Falls, probably testing the Gitxsan to see if it was safe to trade in the area. As soon as the Gitanyow heard about the encroachment, however, they sent a runner to the Nisga'a requesting a joint expedition to go to war with the Tsetsaut. When the Gitanyow and Nisga'a men arrived at the Tsetsuat's camp, however, they found the Tsetsuat willing to leave the area in order to resolve the conflict more peacefully, and a xsiisxw ensued. Reverend McCullogh, the Nisga'a's Indian agent, wrote down the ada'ox recording of the event in the 1900s, which was told to him by 'Wiilitsxw, a member of the Gitanyow Wolf Clan. According to McCullogh's account, the Tsetsuat put on a dance before their enemies, presumably the Gitanyow. A large fire was built in a clearing among the trees, and the Tsetsuat chiefs and women again danced and sang before their guests the "gawaganii" song. A Gitxsan elder, Fred Johnson, testified in Delgamuukw that after singing the peace song, the Tsetsuat Chief ceremoniously waved a goose wing, offering the territory around Meziaden as compensation for the death of the two chiefS.12 When the ceremony was finished, the Tsetsuat "left for the 9 Neil Sterritt with Robert Galois, Peter R. Grant, Susan Marsden , Richard Overstall, Tribal Boundaries in the Nass Watershed, (Vancouver: UBC Press, 1998), pp.44-45. 10 lbid., p. 46. 11 Ibid. 12 Fred Johnson, Commission Evidence given in Delgamuukw v. the Queen, September, 1986, p. 1-58 and p.1-59. Stikine, and have never since set eyes on . . . Meziadin. " 13 24 This agreement proved durable, and the land transfer contained therein was even recognized by McCullogh approximately fifty years later.14 Another xsiisxw took place in 1865, according to a Gitxsan women named Luuskayk. She provides the following account: I was born at Kispiox about seventy years ago [c. 1854]. My father belonged to the Wolf phratry in that village, my mother to the owl [Giskaast] phratry, so they gave me the name Luskayok, which means "Cry of the baldheaded eagle," the eagle being the crest of my father's phratry. One of my father's sisters married an Indian of the Long Grass band and went to live in his country. When I was eleven years old a fight occurred between these Long Grass Indians and the Kispiox people. Several Kispiox men were slain and five Long Grass Indians, among them my aunt's brother-in-law, who was killed by my mother's brother. The two peoples then settled their quarrel by holding a feast together in the Groundhog country, and my parents, lacking a son, sent me to live with my aunt as a mark of good will. 15 Thus, a battle between the Kispiox and Long Grass People was resolved traditionally in the 1860s. In at least two major battles Gitxsan law continued to operate in the decade following Douglas's 1858 declaration. When considered in light of the evidence showing that English law and order had not yet reached Bella Coola, and was precarious at Metlakatla, this suggests that legal colonization of Gitxsan homicides was truly embryonic in the 1860s, if not nonexistent. This would have been particularly true of Gitxsan-Gitxsan homicide cases, which would have composed the majority of such incidents, given that the Gitxsan were by far more numerically numerous than the local whites. Indeed, Marius Barbeau recorded a Gitsegukla source as stating that, before 1872, "the law was ours 13 Wi-lizqu and J.B. McCullagh, "An Indian Feud," North British Columbia News, July 1925, p. 174; Sterritt, et al. , p. 48. On the other hand, Fred Johnson, whose father was present, testified in Delgamuukwthat a battle preceded the xsHsxw. See Commission Evidence of Fred Johnson, p. 1-61 , p. 1-62, in Delgamuukw v the Queen, September, 1986. Fred Johnson, p. 1-66. 15 Diamond Jenness, Preface, The Sekani Indians of British Columbia, Anthropological Series 20, National Museum of Canada Bulletin 84 {Ottawa: CMC, 1937), p. v; Sterritt, p.55. 14 25 to enforce." Therefore, it is reasonable to assume that if English law secured a degree 16 of influence over northwest coast tribes by 1869, it had not yet established a foothold over Gitxsan homicides. That foothold was to come after confederation with Canada in 1871, following the accidental burning of the Gitxsan village, Gitsegukla. In June of 1872, Gitsegukla people obstructed the work of prospectors by resolving not to "let any canoe pass" up the Skeena river until the following summer. They asserted that the only way for the government to have the blockade lifted peacefully was to abide by a Gitseguklan petition and provide financial compensation. 17 The Gitseguklan's were understandably aggrieved with white travellers who had allowed a camp fire to burn extensive parts of their village, including twelve houses and most of their contents, crest poles, and ten canoes worth some $6000. Unfortunately, ignorance of the damage caused, or fear of reprisals and costs, had led the campers to depart without negotiating the settlement required by indigenous law. 18 Furthermore, a constable from Port Essington touring the area to collect tax revenue, Robert Brown, noted that nothing short of an armed force with a magistrate would prevent violence, particularly as the accident had "foiiowed so quickly after the loss of seven Indians by drowning from freight canoes." 19 Because there is no mention of the drowning in the documentation of the subsequent settlement, which suggests that the burning of the village was by far the primary concern, it is not possible to conclude that this was a umanslaughter'' case from either cultural viewpoint. In any event, the Gitseguklans believed that all of white society was culpable for the costs of the fire: the rmperatives of Gitxsan law suggest that whrte lives and property could have been taken as compensation. The Gitxsan probably opted to 16 Marius Barbeau, The Downfall of Temleham, (Edmonton: Hurtig Publishers, 1943), p. 70. Petition from the People of Kitsegukla to the Lieutenant-Governor, enclosed with letter from Thomas Hankin to the Lieutenant Governor, BCA, GR 443, Box 58, File "B.C. Lieutenant-Governor Papers." ,a Constable Brown to Provincial Secretary, 26 June 1872, BCA, GR 526, Box 3, File 465; Marius Barbeau and William Beynon, informant Charles Mark, CMC, Northwest Coast Files (Gitsegukla) (B-F-63.3) (1924), Box B5; Galois, p. 72. 19 Constable Brown to Provincial Secretary, 26 June 1872, BCA, GR 526, Box 3, File 465. 17 26 blockade the Skeena river instead to avoid a broader war which they suspected would be lost or at least too costly. Their choice of protest was to prove a wise one, and an agreement between five Gitseguklan chiefs and Lieutenant-Governor Trutch was concluded on board H. M.S. Scout at Metlakatla, on August 9th, 1872.a> This agreement, and the events associated with the burning of Gitsegukla, are relevant to Gitxsan homicide incidents. As the first major interaction between Gitxsan law and Canadian law and the formal introduction of Canadian law in the upper Skeena area, the 1872 agreement with Trutch represents the general influence of English law in the region , and that includes police jurisdiction over homicide. The Gitsegukla agreement also is relevant to the thesis because it had long-term implications for Gitxsan attitudes towards traditional blood vengeance . The Gitseguklans agreed to forego blood vengeance in future grievances with other groups and to take them to the government instead. Canadian law was able to establish a foothold on the Skeena coast in 1872, but not without substantial compromise with traditional custom. In his article "The Burning of Kitsegukla, 1872," Robert Galois makes a similar point in arguing that the "writ of the state ran weakly, and, perhaps more significantly, it ran slowly" in the Skeena river, region 21 and that a "balance of power" existed between the Gitxsan and whites in 1872.22 Specifically, Galois argues that the events leading up to the meeting suggest that the Gitseguklan chiefs descended the Skeena expecting a settlement that would respect their law, not a trial according with English law. Then, once on board H. M.S. Scout, the chiefs and the government officials held a "formal meeting, a settlement (including compensation, agreement, and written record), and an entertainment". Galois concludes that "nothing in this sequence of 20 Galois, p. 70. Trutch was accompanied by William Duncan, as interpreter, and Attorney-General J.F. McCreight. Ibid., p.80. 22 1bid., p. 81. 21 27 events, it should be noted, is incompatible with the structure of a Gitksan feast. "Zl Galois does an excellent job of assembling and analyzing the evidence on this case, which is virtually unaddressed in the literature elsewhere. However, his interpretation over emphasizes favourable evidence while not addressing some other key points. The following discussion aims to contribute to the understanding provided by Galois's piece through arguing that Gitxsan law had the balance of influence in the settlement. The final agreement required compensation for the Gitseguklans in exchange for removal of the blockade and the promise from them to take future grievances to the government instead of violating Canadian law. 24 Typically informed by the English ideology of cultural superiority, Trutch, now Lieutenant-Governor, expressed his interpretation of the agreement on board Scout First, the crimes committed by the Indians in blocking passage up the Skeena would be "forgiven" on this occasion. Such leniency was a product of the fact the Indians were only "children" and unfamiliar with White laws and customs . Secondly, he viewed the Kitsegukla fire as an accident, there being no evidence that the Whites had intended to burn the village. The government, therefore, could accept no responsibility for such an occurrence. Instead, out of charity, the people of Kitsegukla were to receive a "present . .. as an act of grace to you and not a payment of debt." Finally, Trutch was at some pains to insist that, in the event of subsequent transgressions, the "Indians" would be punished . On the other hand, should the Kitsegukla chiefs have any complaints "against any one 'they would 'always find I am ready to hear you."'z; Aside from further demonstrating that the 1872 gunboat intervention was the first major assertion of common law amongst the people of the Skeena river, Trutch's first comment reflects a great deal about the reality of Canadian law enforcement. Had English law been enforced in 1872, G itseguklans would have been tried for blockading the river, shooting at traders, and numerous other acts theoretically 2 " Ibid. , pp. 59-81 . ' 1oid .• p. 78. 26 As summarized by Galois, p. 71 . 2 28 'illegal' .26 Because the officials were far from southern centres of power, and the local white population was comparatively small, it would have been too costly in terms of life, finances, and mining opportunity to punish the Gitxsan. Threatening to bombard the village as the government had done in other areas of the province, even if Scout and Boxer had been able to ascend the narrow Skeena river, would not have provided much bargaining leverage since Gitsegukla had already been practically destroyed anyway. And sending in a large ground force would have been extremely costly in financial, political , and human terms. By contrast, taking the Gitseguklan chiefs to Metlakatla (away from their territory) to sign the settlement had required only a few soldiers with little risk of conflict. In 1888, the government sent in a large ground force to curb assertions of Gitxsan law. But in that case the government believed that a forceful intervention was required to prevent the possible, perhaps imminent, death of large numbers of whites. In 1872, the major fear was that mining would be adversely affected; the shooting at traders had been minor and incidental, and there was no expectation that white deaths were imminent. Moreover, sending in troops could have alarmed the population in southern parts of the province and served as an embarrassment should officials to the south and across the Atlantic hear about the precarious nature of English law in northern British Columbia. Indeed, embarrassment was one of the consequences of enforcing English law at Metlakatla in 1869 that Trutch had wanted to avoid, and it may have been a factor in his decision to compromise in 1872.v In light of these considerations, the expedient option was to strike a peaceful resolution that gave the appearance that law and order were maintained, an appearance that was accepted by The Daily Standard. which reported that the matter 26 Marius Barbeau and William Beynon, informant Mark Wiget, CMC, Northwest Coast Files (Gitsegukla) (B-F-63.1) (1924), Box B5; Marius Barbeau and William Beynon, informant Dan Guxsan, CMC, Northwest Coast Files (Gitsegukla) (B-F-63.2) (1924), Box B5 27 Trutch, Report and Journal. had been resolved peacefully by an arrangement at Trutch's 29 d. ~ The Gitseguklans seem not to have registered displeasure with Trutch's first comment, that they were not punished for blockading the Skeena because they were "children" unfamiliar with white law, because they did not understand his meaning, or perhaps they believed that his statement was a face-saving measure made tolerable by the presence of an armed gunboat and soldiers. What made Trutch's position even more agreeable was the fact that he had not enforced English law with respect to the Gitxsan's blockade or other "offences" transpiring in the course of it. Arguably, Trutch's "leniency" was not inconsistent with colonial practice elsewhere where past transgressions were forgiven upon the understanding that the common law would be enforced henceforth. Nonetheless, nothing about the agreement demonstrates that English law was enforced in 1872. On the other hand, Trutch's second point shows that Gitxsan law was enforced by the settlement. From his viewpoint, the settlement did not enforce indigenous law since the payment contained therein was a "gift" rather than "compensation" that could be construed as an acceptance of liability. Even if the chiefs understood Trutch 's intent, they had to make up their own minds about the meaning of the exchange. It was stiil up to them to interpret the settlement from their own cultural viewpoint. They had to decide if the settlement was either inconsistent or consistent with Gitxsan law. Taking the former viewpoint would have entailed seeing Trutch's payment as a "gift" rather than "compensation". The size of the payment suggests that the chiefs may have understood and agreed with Trutch. The suggestion that they saw the $600.00 payment as compensation, one tenth of the total cost of the damages according to Brown's estimate, seems at odds with indigenous law, which held that compensation should be about equal to the damages sustained. In ether words, given that the chiefs were aware that the payment was significantly less than the financial and cultural cost 28 "The Lieutenant-Governor Arranges the Skeena Indian DiHiculty," The Daily Standard. 20 August 1872, p. 3. 30 of the damages, it seems reasonable to assume that they saw it as something other than "compensation". 29 Yet in doing so, the chiefs would have had to admit to themselves and their own people that they had agreed to a settlement that disgraced their custom and that made a mockery of their blockade and petition, which were intended to solicit respect for their compensation laws. It is more probable that they chose to interpret Trutch 's payment as partial compensation for the burning of Gitsegukla, despite the fact that it was a fraction of the cost of the damages. Northwest coast groups commonly had different ideas of what constituted "equal" compensation, and even who was liable. The Gitxsan may not have been surprised to receive such sparse payment. In fact, they may have been grateful, given their reported awe and fear at the sight of the warship.:J) Besides, the cost incurred by the whites from the blockade of the Skeena must have made otherwise inadequate financial compensation even more acceptable. Moreover, the compensation had come with the provision that more would follow "should they behave themselves," 31 and it seems that this promise was fulfilled in 1874, when Constable Brown recommended as much to the Provincial Secretary.3! The Gitxsan were expecting and had been promised compensation from Brown and others. After all, it was for compensation that they had blockaded the Skeena river and petitioned the government in the first place. The manner in which the compensation was given also seems to have been consistent with Gitxsan law. According to a Gitxsan man named Mark Wigyet: "The foremost chief got $90. Some got $80. Four got $90. And some $70 and $60. This was to assist the people to purchase nails and tools." 33 Thus, money was distributed 29 Petition from the People of Kitsegukla to the Lieutenant-Governor, enclosed with letter from Thomas Hankin to the Lieutenant Governor, BCA, GR 443, Box 58, File "B.C. Lieutenant-Governor Papers." 30 William Duncan to Church Missionary Society, 3 February 1873, BCA, MS-2758, Reel A01709 , Letterbook No.1, 1871 -1876, pp. 155-156. 31 Ibid. "' Letter by Constable Brown, 31 August 1874, BCA, GR 526, Box 11 . 33 Marius Barbeau and William Beynon, informant Mark Wiget, CMC, Northwest Coast Files {Gitsegukla) {B-F-63.1), Box B5. according to rank. 34 31 Because the relationship between rank and wealth was very important to Tsimshian peoples, this distribution clearly made the agreement more acceptable .:f) Thus, the inadequacy of the payment must have seemed a minor concern given the nature and existence of the compensation. Trutch's payment was consistent with indigenous compensation norms even though it was quite small, and, as Galois states, "there is no reason to believe that the Kitsegukla chiefs viewed these payments as 'an act of grace."':l> In short, from the Gitxsan's viewpoint, the payment accorded with their law, and Trutch probably knew this since he had received the petition containing their demands.37 Although Canadian law and order in the upper Skeena area was far from established by the 1872 settlement, Trutch's third point to the effect that the Gitxsan were to bring future grievances to the government rather than resolve them traditionally, was to have long-term affect. Both sides seem to have understood this aspect of the settlement in the same light. According to Barbeau, sixteen years later witnesses recalled , "We made a pledge, a pledge that binds our people in friendly loyalty, a memorable pledge to obey King George's law, to bring forth our disputes to his court, that he may adjudicate between us and our pale-faced neighbours. Ever since we have respected our agreement.":l> As will be shown in Chapter Three, this aspect of the agreement was to influence the Gitseguklan's response to a subsequent domestic homicide involving the Kitwancool in 1888. It is important to point out, however, that there is no evidence to show that the Gitseguklans brought any homicide cases to the government in the 1870s. Nor is there any reason to assume that people from villages other than Gitsegukla sought government intervention in 34 Galois, p. 78. Clarence Bolt, Thomas Crosby and the Tsimshian: Small Shoes for Feet Too Large. (Vancouver: UBC Press, 1992), p. a.Tsimshian host Chiefs would distribute property in accord with the rank of recipients at potlatches . The quality and distribution of the gifts contributed to the leader's groups' status, and the quality of the entire feast. 36 Galois , p. 81 . 37 Petition from the People of Kitsegukla to the Lieutenant-Governor, enclosed with letter from Thomas Hankin to the Lieutenant Governor, BCA, GR 443, Box 58, File "B.C. Lieutenant-Governor Papers." 36 Barbeau, The Downfall ofTemleham, pp. 71-72. 35 homicide incidents. 32 In short, the Gitsegukla settlement involved concessions from both sides. For their part, officials obtained right of way for freight ascending and descending the Skeena river, paid a fraction of the compensation required to cover the cost of the damage done to Gitsegukla, and secured agreement to bring future disputes to the government. And yet, the Gitseguklans were not punished for blockading the Skeena despite the imperatives of English law, but instead were "rewarded" in a form congruent with traditional protocol. Their essential demands were also met. Clearly the people of Gitsegukla received little in exchange for their agreement to abide by the common law in the future. But the agreement shows that Gitxsan law predominated in 1872. And while English law established a foothold over domestic homicides, this influence was not realized until 1888. It is reasonable to conclude that Gitxsan law continued to have the balance of influence over domestic homicides in the 1870s. Trutch's willingness to adhere to Gitxsan law is not surprising considering that there were few local officers of the law to enforce a peace more consistent with the 1858 declaration. The necessity of long-distance governmental law enforcement in itself shows that there were few policeman on the ground. Indeed, the only constable in the area to report the blockade to the Provincial Secretary and negotiate its temporary lifting prior to Trutch's arrival was Brown, and he was stationed at Port Essington. And the fact that Brown, a government official residing so far from Hazelton, was the one responsible for collecting tax revenue from the few whites living near the Skeena river suggests that there were few, if any, government officials established on Gitxsan territory. Also notable is that none of the local officials who became embroiled in the matter made any mention of local police or efforts to coordinate with them. In fact, Brown suggests the opJX)site, requesting local law enforcement because "nothing short of the presence of a Magistrate supported by an 33 armed force" would be of any use against the Gitxsan's blockade and threats .:Jl And Stipendiary Magistrate W. H. Fitzgerald ordered Brown to "report himself at Hazelton, as it is highly requisite that a Government officer should be there, to impress the Indians that there is some person to look after them , as well as to afford protection to the settlers." Fitzgerald himself had contact with the Gitxsan, having made some attempt to mitigate agitation over the burning of Gitsegukla. But like Brown, he was stationed several hundred kilometres beyond Gitxsan territories, at Germansen Creek in the Omineca mining district.4J That police presence was minimal makes sense given the nature of ethnic relations at the time. Few whites lived in the area, and not many conflicts over resources occurred before the 1880s, despite the increased presence of miners. With few major aitercations over land and not much threat to the few settlers, there was little reason to establish a significant local constabulary. Victoria could hardly afford to pay for local enforcement in every such sparsely populated area of the province . There is also evidence of Gitxsan law determining matters concerned with the local deaths of their own people in the 1870s, particularly where whites were held liable. For example, a canoe under Hazelton trader Thomas Hankin's employ carrying goods capsized while navigating the rapids of Gitsegukla Canyon in the early 1870s. Because one of the "Huklegate" employees drowned, some Gitxsan at Hazelton demanded compensation from Hankin, who initially refused, hoping to "bluff the Indians out of their payment." However, the Gitxsan were not satisfied until payment exchanged hands. 41 Even in the Omineca mines, which were organized and run by white miners, law enforcement officials themselves compromised with indigenous law. In 1874, when two "Indian" women were killed on Manson Creek, a suspect, Tommy, was apprehended and tried, but the judge was convinced that only enough evidence 39 4 Constable Brown to Provincial Secretary, 26 June 1872, BCA, GR 526, Box 3, Rle 465. ° Fitzgerald to Provincial Secretary, 31 August 1872, BCA, GR 526, Box 4, File 621 , and Galois, pp. 76-77. 41 Will H. Chase, Reminiscences of Captain Billie Moore, (Kansas City: Burton Publishing Company, 1947), p. 50. 34 existed to find him guilty of taking the womens' belongings, and he was sentenced to the New Westminster jail for theft. This was insufficient for the brother and uncle of the women, Hydagh, who threatened to kill Tommy's sister if the government did not compensate him for the loss of his i .~ Stipendiary Magistrate Fitzgerald, who seems to have been the supreme authority at the mines, promised him $76 compensation, the same amount left over after the womens' funeral expenses.