Tuesday, March 8, 2011

Prof. Robert Anderson on Aboriginal Land in BC

Over sixty aboriginal nations to our north are engaged in a treaty process with Canada and British Columbia to work out property interests throughout the province. Here in Washington State, tribes and the federal government entered into treaties in 1854 and 1855, but there are no treaties covering the nations within BC.

Professor Robert T. Anderson tells the story of the historic case that led to this treaty process, Delgamuukw v. British Columbia, in a chapter of Indian Law Stories (pp. 591-629) (KF8205.A2 I535 2011 at Reference Area).

The case was brought by the primary chiefs of the Gitskan and Wet’suwet’en. (If you look at the map below, the homes of these nations are pretty much in the middle, north of Vancouver Island and a bit inland from the coast. On the map, the Gitskan region is orange, north of the Wet’suwet’en area, which is green.) In the early stages of the case, BC rejected all claims of aboriginal property rights or the right to self-government.

map of BC First Nations

The trial began with statements from the two nations' senior chiefs, stating their Houses' relationship to the land on their own terms. Over three years (beginning in 1987), the court heard 318 days of testimony and 56 days of argument.

The trial judge discounted the oral histories offered by the plaintiffs. He found that all rights had been extinguished before BC became a province in 1871. By the time of the appeal, even the BC government didn't take this extreme position (an election had changed the leadership and hence the position).

The Canadian Supreme Court (1997) found that the oral histories should have been accorded great weight, showing the existence of a land tenure system and of the centrality of the land to the culture. Although the Court determined that aboriginal title is less than fee simple title, the opinion—with its respect for the oral histories and a requirement that governments consult with aboriginal groups—is seen as a victory for the First Nations.

The litigation led to the establishment of the British Columbia Treaty Commission, an independent body facilitating the treaty negotiations. According to the Commission's 2010 annual report, two nations have ratified final agreements, three have completed final agreements, and others are in various stages of negotiation.

Other chapters in Indian Law Stories provide context for cases you may be familiar with from class, whether it be Property (Johnson v. M'Intosh), Constitutional Law: Freedom of Expression (Lyng v. Northwest Indian Cemetery Protective Association, or—of course— Indian Law (Lone Wolf v. Hitchcock, Oliphant v. Suquamish Indian Tribe, and others).

The editors point out several benefits of presenting these famous cases as "law stories." Even scholars very familiar with the opinions in a case can learn more by exploring the factual setting. For instance, the professor who wrote about Montana v. United States, in which the Supreme Court held that the Crow Tribe could not bar non-Indians from fishing on the Big Horn River, learned that Justice Byron White enjoyed fly fishing in Montana, including on the Big Horn River. Knowing that doesn't change the precedent or the stated reasoning, but it is interesting.

More importantly, the stories "foreground a broader array of actors and voices, especially the Native peoples themselves." (p. 7) Readers can understand more of the historical and social contexts of the cases, including "larger, Indian-driven social movements, often tied to rectifying past injustices and achieving tribal cultural revitalization." (p. 8)

All of this is not just for richer understanding for its own sake:
Understanding the relationship between Indian law litigation and social movements will facilitate more effective lawyering, as law students come to understand better what is at stake for their future clients and the proper place for litigation in achieving their clients' ends.
(pp. 8-9) The editors also talk about the importance of seeing the later effects of cases (often surprising) and considering the litigation choices made by lawyers and parties.

I haven't read any of the chapters besides Professor Anderson's yet. That's one of the beauties of the Law Stories Series: you can read a volume straight through or you can flip through the introduction and pick out the chapters that interest you most.

Graphic credit: map of First Nations in British Columbia from British Columbia Ministry of Education.

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