The founder and president of Indigenous Corporate Training Inc., Joseph develops training programs on such topics as consulting, engaging and negotiating with Indigenous peoples. He has also written or co-authored books with titles like 21 Things You May Not Know About the Indian Act.
Joseph has already received his chief’s name – K’axwsumala’galis – at a Big House ceremony before the COVID-19 pandemic. But to take his seat as a chief, he must first host a potlatch, which he had to postpone because of a death in the family.
“Chief” is an old European expression for leader or ruler, which settlers applied en masse to Indigenous leaders even though Indigenous people had their own names for their leaders.
Coast Salish cultures on southern Vancouver Island, for example, used the term siyá:m – one of various spellings – to refer to the leader of a family group, said University of Victoria historian John Lutz. Europeans noticed certain siyá:ms had more wealth and prestige than others and called those siyá:ms “chiefs.”
The answer: it depends
The simple question of what are the differences between a chief elected under the Indian Act and a hereditary chief, and their jurisdictions, defies simple answers.
“My answer is it really depends on the community,” Joseph told Northern Beat. “When you think about B.C., there’s seven major language families, over 30 different dialects, 200 plus bands. There’s little nuances, regional differences. And some of them aren’t little, they’re actually quite substantive.”
A band council – most are elected but not all (that’s just one of many wrinkles) – has jurisdiction established under the Indian Act to access federal funding and manage a range of programs such as health care, housing, and education. In practice, band councils have taken on wider responsibilities.
Some hereditary leaders, including those in the Office of the Wet’suwet’en, argue elected councils only have jurisdiction over reserve lands and that hereditary leaders have sole jurisdiction over their traditional territories.
Conversely, others point out there is no law or case law limiting elected councils to reserve lands, and that band councils represent modern democracy and are the freely chosen leaders in each community.
Some legal experts refute the claim of hereditary leadership title, arguing title is yet to be defined and is nonetheless shared by all members of the community.
Aboriginal title remains “unresolved”
Those who argue on either side – that band councils have jurisdiction over a First Nations traditional territory or that hereditary chiefs have that sole jurisdiction – both point to the landmark 1997 Supreme Court of Canada case known as Delgamuukw.
In that decision, which overturned a 1993 B.C. Court of Appeal ruling, Chief Justice Antonio Lamer said, “Though the interest of an Indian band in a reserve has been found to be derived from, and to be of the same nature as, the interest of an aboriginal society in its traditional tribal lands, it does not follow that specific statutory provisions governing reserve lands should automatically apply to traditional tribal lands.”
And while the judgment confirmed the existence of Aboriginal rights and title, it said the Wet’suwet’en and Gitxsan hereditary chiefs who brought the case still had to prove their claim either in court or through negotiation. In fact, the judge recommended the latter course.
“Those negotiations should also include other aboriginal nations which have a stake in the territory claimed,” the judge wrote. “Moreover, the Crown is under a moral, if not a legal, duty to enter into and conduct those negotiations in good faith.”
More than two decades later, the Gitxsan and Wet’suwet’en hereditary leaders haven’t re-litigated their case nor have they negotiated an arrangement with the Canadian or B.C. governments. Certain Wet’suwet’en hereditary chiefs have, however, unilaterally stated they do have title and thus the right to block construction of the Coastal GasLink natural gas pipeline through their traditional territories.
Considering that all 20 elected band councils along the pipeline route, including five Wet’suwet’en band councils, have signed benefits agreements with the companies, the disagreement has come to exemplify the jurisdictional clash between the two systems of Indigenous governance.
In granting an injunction against the hereditary chiefs’ blockade in December 2019, Madam Justice Marguerite H. Church noted, “The Aboriginal title claims of the Wet’suwet’en remain outstanding and have not been resolved either by litigation or negotiation, despite the urging of the Supreme Court of Canada in Delgamuukw. It is apparent from their affidavit materials and submissions that the defendants are aware that their title claims remain outstanding.”
The judge also noted that band councils in their affidavit material disputed the assertion that their federal jurisdiction is limited to reserve lands.
No choice but to lead
“The elected Band councils assert that the reluctance of the Office of the Wet’suwet’en to enter into project agreements – out of concern that it might negatively impact their claims to Aboriginal title – placed the responsibility on the Band councils to negotiate agreements to ensure that the Wet’suwet’en people as a whole would receive benefits from Pipeline Project and other projects in their territory,” the judge wrote. “This appears to have resulted in considerable tension between the Office of the Wet’suwet’en and the elected Band councils, which is readily apparent in some of the affidavit materials filed by members of the Wet’suwet’en community.”
The judge went on to cite the deposition of a Troy Young, a descendant of Wet’suwet’en Hereditary Chief Na’moks, one of the most quoted chiefs in the pipeline dispute. The general manager and director of pipeline contractor Kyan Resources Inc., Young deposed that delaying the project would result in job losses and lost economic opportunities for Wet’suwet’en people.
In a recent National Post op/ed, Crystal Smith, elected chief councillor of Haisla Nation, argued similarly about the socio-economic benefits to her community from resource development projects including the Coastal GasLink pipeline.
Retired University of Victoria law professor Hamar Foster said the injunction underscores the original conundrum of which laws prevail when there are two systems. Under Canadian law, band councils are lawful constructs “and their powers are all lawful,” he said. “According to Gitxsan or Wet’suwet’en or other traditional law, maybe not.”
However, Foster added, “But I think it’s a little too easy to constantly say, ‘Oh, the band council’s only authority is with respect to the reserve and it is the hereditary chiefs whose authority is over traditional lands outside the reserve.’ That may be the case. That may ultimately be what we decide. I think it’s probably more likely that we’ll come to some kind of compromise over this.”
Foster and others noted that the line between hereditary and elected chiefs isn’t so stark as it’s often portrayed. An elected chief can be a hereditary chief and vice versa. “I think the point here is to stress how important it is for band councils and hereditary chiefs to work together, as the Heiltsuk have,” he said.
Wet’suwet’en hereditary chief Satsan, whose English name is Herb George, doesn’t advocate compromise. He said section 35 of the Constitution Act of 1982 already confirms existing Aboriginal and treaty rights.
“We don’t need our jurisdiction to be validated by treaty, legislation or any other judicial pronouncement,” said Satsan, who was the speaker and key strategist for the Wet’suwet’en in the original Delgamuukw case but is no longer involved in Wet’suwet’en governance. “We have the inherent right. All we need to do is to engage our people and work together to put it back in place.”
As senior associate for the Centre for First Nations Governance and founder of its predecessor organization, the National Centre for First Nations Governance, Satsan works with band offices and Indigenous leaders to wrench control from the Indian Act and exercise governance outside of it.
“We had our own laws in place. Every nation had their own style of government across the country,” Satsan said. “And it’s still deeply embedded in our memory notwithstanding that it’s been outlawed, and we’ve been separated from it under Section 91  (of the 1867 British North America Act, Canada’s original constitution).”
The centre is also a partner in the six-year Rebuilding First Nations Governance Project at Carleton University.
“People are realizing and learning that as long as we stay under the Indian Act, we’re going to continue to have the problems that we have.” Satsan admitted, though, that “we’re not going to get rid of the Indian Act tonight.”
It took the Nisga’a people more than a century of determined efforts to shake the yoke of the Indian Act but they have done so thanks to the landmark treaty that took effect in 2000. They chose a form of governance that resembles a modern democratic system as much as it does a traditional Indigenous one.
Satsan’s grievances about how Europeans demolished Indigenous legal systems extends to the two papal bulls of the 15th century that declared the Americas to be “terra nullius,” meaning the land belonged to nobody.
Joseph, meanwhile, cited the Royal Proclamation of 1763 – which went into effect after the British defeated the French to take over what is now Quebec – that stated Indigenous people held the rights to lands not ceded to colonial governments.
Band councils were created under the Indian Act “as part of an assimilation process,” Joseph said, uttering a commonly held notion. “They were never ever designed to manage broad territories, traditional territories or treaty lands.” In that view, the jurisdiction of a band council is limited to on-reserve programs such as health care, housing, and education, Joseph added.
Theory versus reality
That’s the way it’s supposed to work, according to Michael LeBourdais, who recently stepped down after 16 years as chief of the Whispering Pines/Clinton Indian Band near Kamloops. His band council’s job was “to implement and report on the contribution funding agreement provided to us by Ottawa,” he said.
The trouble is that other regulatory bodies – municipalities, regional districts, ministries, and provincial governments – have come to regard band councils as entities that are vetted and recognized by the federal government.
He also cited as an example the revelation last May that ground-penetrating radar had revealed evidence of what may be about 200 graves on the grounds of the former Kamloops Indian Residential School.
It was the elected chief of the Tk’emlúps te Secwépemc, Rosanne Casimir, who dealt with that tragedy as part of her duties, LeBourdais pointed out. “That’s nowhere in the contribution funding, but she handled it with such poise and grace, and class and style,” he said.
“So you have somebody who’s elected to oversee the contribution funding agreement as provided by Canada, (and) all of a sudden, they’re doing forestry; all of a sudden, they’re doing fish habitat; all of a sudden, they’re doing archaeology; all of a sudden, they’re doing mining – all these other kinds of stuff. And so that’s where the chief is today,” LeBourdais said.
Many, many chiefs
Before European contact, LeBourdais’s Pellt’iq’t People – as was the case with other Secwépemc (Shuswap) tribes – had many chiefs, each with well-defined responsibilities. Those included hunting, salmon fishing, berry-picking, war, and potlatches.
“It wasn’t just one guy running around doing 87 different things that each community needed to get done,” LeBourdais said. “It was dozens of people pitching in to make sure the community had what it needed to get through the winter.”
Although not to the extent of First Nations communities on the coast, there was a hereditary component to how those chiefs were chosen among the Pellt’iq’t. “Especially the hunting chiefs, because they’re the ones that had to understand the shape of the Shuswap nation and the sharing that went on with our neighbours,” LeBourdais said.
In addition to his former elected chief title, LeBourdais gained the title of grand chief after he hosted a potlatch. He did that so he could serve on boards dealing with such things as children, language, and cultural development. It’s a title, though, that carries more cachet than power, he said.
“It’s what they give you when they don’t give you a pension,” LeBourdais quipped.
Elected chiefs still needed
We still need a chief, LeBourdais said. “We need that council. We need that infrastructure and support system. But we also need – as the residential schools showed us, as the Truth and Reconciliation Commission showed us – to start reinstating those other leadership qualities of chief – of berry-picking chief, of salmon-fishing chief, of hunting, all that kind of stuff.”
The chair of the Tulo Centre for Indigenous Governance, LeBourdais has been leading the effort of the Western Indigenous Pipeline Group to buy a majority stake in the Trans Mountain Pipeline from the Canadian government.
LeBourdais originally opposed the pipeline project but mainly because it crossed his reserve without the band receiving anything in return. First Nations aren’t against resource development, such as forestry or oil and gas, he said in an earlier interview. “We’re against irresponsible development, and we’re against being excluded.”
He nevertheless agrees that band councils are limited in their jurisdictions. “But I have to go there because that’s the only legal instrument available to us – the band council resolution,” LeBourdais said.
By the same token, hereditary leadership also has its limitations, he said. “My brother can claim to be hereditary. It doesn’t make him right,” LeBourdais observed.
He said his band council and hereditary leadership have a good relationship. “The key to a hereditary relationship (is) it doesn’t mean they’re decision makers. It means they have a lot of information,” LeBourdais said.
A 2007 B.C. Court of Appeal judgment in Gitga’at Development Corp. v. Hill cited a 2005 ruling that similarly found a band council’s “participation in matters extending beyond those of a merely local nature is extensive. While the Clan Council might be the ‘directing mind’ when dealing with off-reserve matters, it is the Village [Band] Council that has the legal authority to make the decisions that affect the rights of both on-reserve and off-reserve members.”
LeBourdais is convinced he is on the right path with the pipeline. It is already providing benefits for his community in the form of good-paying jobs. “We’re almost back to full employment, largely due to a lot of them going to work on the pipeline,” he said.
His retort to those who say band councils don’t represent Indigenous people is, “Then don’t enjoy the benefits. Because you live with the risks every day.”
Many competing systems
The elephant in the room is the two competing systems. “How do you get them together?” asked Hamar Foster. “How do you decide who has the authority?”
Napoleon stressed in an interview that “Indigenous law is law: it works like any other system of law.”
Resolving disputes requires identifying the legal orders – including Indigenous legal orders – that have dealt with problems in the past.
“That means talking with people that you’re mad at,” Napoleon said. “It means talking with people that you’re in conflict with. It means finding ways for inclusion and fairness, and making sure that everybody has a voice.”
A band council, for example, can make arguments according to the traditional laws of the Dakelh (Carrier) people, as can others. “If it’s a legitimate process by which everybody’s included and heard, then any response, legal response, is going to be understood as legitimate,” Napoleon said. “And if it’s legitimate, people will uphold it – even if they don’t get their own way.”
While some legal experts argue that Indigenous customary law is a part of common law and can be applied by Canadian courts, the courts have seldom agreed. In her 2019 injunction against the Coastal GasLink pipeline blockade, Madam Justice Church noted, “As a general rule, Indigenous customary laws do not become an effectual part of Canadian common law or Canadian domestic law until there is some means or process by which the Indigenous customary law is recognized as being part of Canadian domestic law, either through incorporation into treaties, court declarations, such as Aboriginal title or rights jurisprudence or statutory provisions.”
Historical governance varied with environment
Differences in Aboriginal governance systems across what is now British Columbia, have added complexity to the modern situation, said UVic historian John Lutz. For example, the Ktunaxa, of what is now the southeast of the province, were tee-pee dwelling bison hunters.
“So you know, a different world than the plateau peoples up around Chilcotin or Prince George. And then they were a different world altogether from the folks on the coast. Then the North Coast and the South Coast lived in different worlds,” Lutz said. “And each had different social structures that kind of derived from the environment that they lived in.”
The chiefs, or Ha’wiih, of the Nuu-chah-nulth, on the west coast of Vancouver Island, were largely hereditary, he said. “But if you weren’t really up to the job, some close relative would take it over from you.” For instance, if a Ha’wiih began failing at leading successful whale hunts, necessary to ensure families were fed, it would be taken as a sign of diminished “spirit power.”
“If you weren’t getting any whales that means you couldn’t hold feasts,” Lutz said. “If you couldn’t hold feasts, it meant your spirit power must be weak and you’re no longer fit to be chief. And somebody else who could give a bigger, grander potlatch than you would then, by virtue of that, prove that he had better spirit power.”
The societies were typically stratified, with chiefs descended from the higher ranking members at top, commoners in the middle, and slaves at the bottom.
“In the North coast, the society was so highly stratified that I think people knew what their rank was relative to just about everybody else in the village – you knew if you’re 86 or 87. But here on the South coast, it was kind of larger classes of worthy people and commoners,” Lutz said.
Among the Coast Salish peoples, about 80 per cent of the population were of the upper class, said Keith Thor Carlson, an ethnohistorian, professor and Canada Research Chair of Indigenous and Community-Engaged History at the University of Fraser Valley.
Anyone from that class “could move into leadership positions based upon competencies, which were regarded as being ancestor spirits working very closely with people to provide them with gifts of leadership and the ability to be persuasive, charismatic, wise – those kinds of things,” Carlson said.
Carlson, Lutz, Foster and other historians acknowledge that slavery was a part of Indigenous life on the Pacific Northwest Coast when Europeans arrived. Yet no one today would seriously argue that Indigenous people should revive slavery as a legal tradition any more than they should revive the system of “blood vengeance” that predated the colonial period and which frequently clashed with Canadian criminal law.
In a 2010 paper recounting his experience as an expert witness in the original 2007 Tsilhqot’in Nation v. BC case, Foster cited several examples of how those legal systems conflicted during the 1800s. In one case, a Gitksan man, Haatq, killed a trader after his son drowned in the trader’s employ. In another, a man known as “Kitwancool Jim,” had, at his wife’s urging, reluctantly killed a medicine man who caused the death of their son.
In both cases, they were following the laws of their people although the “agents of Canadian law” didn’t see it that way.
“Notwithstanding that most of us would not give up the benefits of a liberal-democratic polity and the rule of law (as we know it) to live under the sort of legal order common in pre-contact North America, we begin to see that [Indigenous] law could be highly complex and was well-adapted to the conditions in which it operated,” Foster observed in that 2010 paper.
Similarly, a chapter that UVic’s Val Napoleon co-wrote on Indigenous legal traditions, for the 2014 Oxford Handbook of Criminal Law, describes how Algonquin societies dealt with wetiko (or windigo), people considered to be possessed with what loosely translates as a cannibal spirit.
Sometimes, as with certain criminals, wetiko found to be beyond healing were executed. The respected leaders tasked with those decisions often ran afoul of Canadian law and were themselves imprisoned or executed, the authors noted.
“No one is arguing that Cree or Anishabek communities should be able to (or even want to) execute someone becoming a wetiko today,” they wrote.
To be clear: Foster and Napoleon cited such examples to show that Indigenous law existed before European contact and was complex.
“The thing about colonization is that it presents the colonized with a huge dilemma,” Foster said. “What do you do? Do you resist the colonization? Do you cooperate with it? Or do you in fact collaborate with it?”
Napoleon also acknowledges the complexity but argues people shouldn’t give up on the matter. It just means having to engage in complicated conversations.
“When that doesn’t happen, all we have is political allegiances,” Napoleon said. “It’s a shallow form of politics. And I think that it’s part of an anti-intellectualism in Canada and elsewhere. People have to take up the hard thinking and people are capable of it.”
Communities must decide
Adding to the complexities of modern day First Nation leadership is that not all band councils are elected. The Indian Act allows a “custom” form of governance, which several bands have adopted over the years.
The custom provision was put in place to accommodate Indigenous groups in western Canada who hadn’t yet been exposed much to electoral systems and were not “culturally mature enough” to conduct them, Carlson said, referencing the federal government’s perspective at the time.
“But there were so many different systems on the West Coast and in the Prairies … Indian Affairs said in those communities out west, they can operate under a ‘custom’ system until they’re ready for elections,” Carlson said. “So this was seen as a transitionary kind of system that would be Indian Affairs-recognized.”
In the 1990s, before he became an academic, Carlson helped the Shxw’õwhámél, a Stó:lõ First Nation near Hope, replace its Indian Act elections with a system based on traditional governance.
Among Stó:lõ Nations with custom governance – their makeup varies widely – some had a hereditary system where the chief’s title passed onto the oldest child; another selected a successor chief from a broad extended family; yet another combined a hereditary chief with an elected council.
While Bob Joseph is clearly no fan of the Indian Act, he often advises chiefs and other leaders to guide the community to the “proverbial recreation centre.” There they should provide those assembled with resources and models on different forms of governance.
“And then they’ve got to decide: Do we want an elected system, a hereditary system, or a blend of something of those two?” Joseph said. “But it can’t be with the hereditary or the elected people in the room. We have to close the door. We’ve got to stay on the outside and let those communities with their collective rights decide this.”
Whatever the process, solving the dilemma of leadership – hereditary, elected, or something else – is for Indigenous people themselves to craft novel solutions.
A correction on May 9, 2022 clarified Chief Satsan (Herb George) was a key strategist and the speaker for the Wet’suwet’en, but did not testify during the Delgamuukw court proceedings.