Eagle Down Is Our Law: Witsuwit'en Law, Feasts, and Land Claims

Gwynneth C.D. Jones is a policy advisor at the Ontario Native Affairs
Secretariat.

This book presents the expert opinion submitted by Antonia Mills in 1987
for the Witsuwit’en in one of the most significant land claims cases
of the decade, Delgamuukw v. the Queen. The principal issue in the case
was whether the Gitskan and Witsuwit’en peoples retained aboriginal
title to their territories in north-central British Columbia. Mills’s
testimony, combined with that of Witsuwit’en chiefs and elders, and
anthropologists and historians, was key in addressing one of the
essential legal tests for aboriginal title: whether the claimants had a
continuing organized system of government over their territory.

In this interesting and readable account of Witsuwit’en governing
practices—largely free of jargon and unhelpful theoretical
wanderings—Mills draws on her own three-year fieldwork with the
Witsuwit’en and on the accounts of others, to show how chiefs
regularly pay for their territories through an elaborate system of
obligations and contributions implemented at feasts, which serve the
purpose of courts, parliament, and management meetings. She successfully
relates feast protocols and the carrying of names and crests directly to
traditional Witsuwit’en governance of land and society, and avoids
emphasizing traditional management and use of land and resources (the
Witsuwit’en wished to frame their claim to the land based on
governance, not use).

The prologue, epilogue, and several prefaces add thought-provoking
context to the anthropological monograph. Gitskan and Witsuwit’en
chiefs, other legal and anthropological experts involved in Delgamuukw,
and Mills herself offer commentaries on the author’s testimony, the
legal process, and the judgment by Chief Justice McEachern in 1991.
McEachern’s extremely negative characterization of Gitskan and
Witsu-wit’en society led him to conclude that the claimants were too
primitive to have exercised governance over their territory, dismissing
their anthropological expert witnesses as being unscientific and biased.
The effects of McEachern’s lack of understanding (shared by many
others) that a social system different from his own could generate
effective governance should remind anthropologists and historians that
describing other times and cultures carries responsibilities to both the
subjects and the standards of scholarship.