Constructing Law, Space, and their Subjects:
Realities of Law and Governance among the North American Indians and Australian Aboriginals

The Living Law of Aboriginal Communities:
The Git'ksan and Injurious Conduct

A variety of dispute resolution and order-regulating strategies existed across North American Aboriginal societies. The cultural significance of these was either not recognized by white authority, or dismissed as primitive and uncivilized. Consider the following from Hamar Foster's " 'The Queen's Law Is Better Than Yours': International Homicide in Early British Columbia" in J. Phillips, T. Loo and S. Lewthwaite, eds., Essays in the History of Canadian Law Vol. V (Toronto: Osgoode Society, 1994):

In September 1884 the chiefs and people of Kit-au-max, a Gitksan village at the Forks of the Skeena River, wrote to the provincial government hundreds of miles to the south to explain their law of homicide. There was some urgency involved, because the police had recently arrested one of their number and taken him to Victoria to be tried for murdering a white man. The head chief, Geddum-Cal-Doe, said that he and his people wanted peace between the whites and the Indians, and asked that the prisoner be shown clemency. A number of white miners also wrote to the government about the case, but they were of a different view. They blamed much of the growing discontent and danger in the region upon the 'wretched and disloyal teachings' of the missionaries, and dropped hints about taking the law into their own hands. But they decided to wait until the government acted 'on the side of civilization in its warfare against barbarism and fanaticism,' adding that it would be a good idea to set an example by hanging the murderer locally, at the Forks of the Skeena, instead of in far-off Victoria.

Only a few facts about the case are contained in the record compiled for the provincial legislature. The deceased, one Amos Card Youmans, had been in charge of a canoe brigade on the river, and a young Kit-au-max man named Billy Owen had drowned. When Haatq (or Ha-at), Billy's father, learned of his son's death, he sought out Youmans and killed him. It seems that the drowning was an accident, so in his letter to Provincial Secretary John Robson Geddum- cal-doe explained Gitksan law regarding accidental deaths 'that occur in company with others':

It is expected that the survivors shall immediately, or as soon as possible, make known to the friends of the ... deceased, what has taken place. If this is not done, it is taken as evidence that there has been foul play ... The general custom ... is that if anyone calls another to hunt with him, to go canoeing, &c., and death occurs, the survivor always makes a present corresponding with his ability, to show his sympathy and good will to the friends of the deceased, and to show that there was no ill-feeling in the matter.

According to Geddum-cal-doe, Youmans had not done this. When he arrived at Kit-au-max he stayed two days and three nights without mentioning the incident. Asked if those with him were all well, he said they were, except for one with sore feet. Because Youmans had neither spoken of the matter nor given a present, he came under suspicion. Geddum-cal-doe added that his people did not know that Haatq -- a 'quiet, inoffensive man' -- was going to kill Youmans, and said that they had offered no opposition to his arrest because they believed that the government would take all these circumstances into consideration.

There was, of course, more to the story than this. Transporting heavy loads up and down the Skeena was a dangerous business, and relations between the Gitksan and the local miners and traders were uneven. Moreover, both Haatq and Youmans had experienced death and compensation before. The different sources are not entirely consistent, but it appears that a few years earlier Haatq had lost a nephew in a similar incident, but on that occasion the trader involved had not only immediately informed Haatq but had also paid for the search for the body, the burial, and the dead young man's wages up to the time that the canoes reached the Forks without him.

There is also some evidence -- albeit inadmissible at Haatq's trial -- that Youmans had himself paid compensation for a man killed in his employ, and there is no doubt that he was familiar with this aspect of Gitksan law. He was in fact married to a Gitksan woman, and would have known that this 'would make the Indians ... more readily think that he was subject to their law, and notwithstanding in case of his death his children would have to be taken over by the tribe as their own under a well known tribal law, he would not be spared if he did not act rightly in the matter.' (pp.41-42)

It is risky in the extreme to generalize about law, much less about the laws of a group of human beings as diverse as the Indian peoples of North America. However, the following attempt by Professor Reid is a succinct and useful one. There was a principle, he states, 'widely held among the Indian nations, of a duty -- sometimes privileged, possessed by certain members of the nation, often kin folk of a specific lineage or of a defined degree -- to retaliate in kind for the killing of a member of the nation or kin group. Often that principle was coupled with the doctrine of an individual liability upon the person who was the "cause" of the homicide, and a collective responsibility upon all members of his or her kin group, whether a household, and extended family, or a clan.' (p.53)

Click for map	Map of Aboriginal British Columbia
Click for map	Map of Gitxsan Territories
Click for photo	"Indians Poling a Canoe up the Skeena River, Kitimat-Stikine 1900"

QUESTION

How much does Reid's description of the law "widely held among the Indian nations" regarding revenge tell us about how to understand the conduct of the white and Gitk'san parties in Foster's anecdote?