Abstract
Rethinking Indigenous legal orders and law is fundamentally about rebuilding citizenship. The theory underlying this chapter is that it is possible to develop a flexible, overall legal framework that Indigenous peoples might use to express and describe their legal orders and laws so that they can be applied to present-day problems. This framework must be able to first, reflect the legal orders and laws of decentralized (i.e. non-state) Indigenous peoples, and second, allow for the diverse way that each society’s culture is reflected in their legal orders and laws. In turn, this framework will allow each society to draw on a deeper understanding of how their own legal traditions might be used to resolve contemporary conflicts. Colonial histories cannot be undone. This means that Indigenous peoples must figure out how to reconcile former decentralized legal orders and law with a centralized state and legal system. Any process of reconciliation must include political deliberation on the part of an informed and involved Indigenous citizenry.
This article has been revised from the original version, which was written for the National Centre for First Nations Governance and published in 2007 online at http://fngovernance.org. The ideas contained herein were reworked and substantially developed in Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (PhD Dissertation, University of Victoria, 2009) [unpublished]. This dissertation is available online at http://dspace.library.uvic.ca
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Notes
- 1.
Hadley Louise Friedland, The Wetiko (Windigo) Legal Principles: Responding to Harmful People in Cree, Anishinabek and Saulteaux Societies – Past, Present and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns. (LLM Thesis, University of Alberta, 2009) [unpublished] at 15–16 [Friedland] [footnotes omitted].
- 2.
For a wonderful discussion on the sources of Indigenous law, see John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010) 23–58 [Borrows].
- 3.
J.H. Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (Stanford: Stanford University Press, 1985) 1.
- 4.
Harold J. Berman, Law and Revolution (Cambridge: Harvard University Press, 1983) at 49–50.
- 5.
Saulteau First Nation located in northeast British Columbia (BC). This region is covered by Treaty 8, one of the numbered treaties, which also covers northern Alberta and part of the Northwest Territories. Northeast BC is the homeland of the Dunnezah peoples. By 1911, a group of Saulteaux peoples had moved into Dunne za territories. In 1914, the Saulteaux were “admitted” into Treaty 8 without the usual negotiated adhesion process. In 1918, the Saulteaux took up residence at the eastern end of Moberly Lake where a reserve was set out for them. This community prefers the spelling “Saulteau.”
- 6.
Delgamuukw v. The Queen (March 8, 1991) Smithers 0843 (BCSC); Delgamuukw v. British Columbia (1993), 104 DLR (4th) 470 (B.C.C.A.); and Delgamuukw v. British Columbia, [1997] 3 SCR 1010.
- 7.
Friedland, supra note 1 at 45.
- 8.
Jeremy Webber, “Naturalism and Agency in the Living Law” in Marc Hertogh, ed, Living Law: Reconsidering Eugen Ehrlich, Oñati International Series in Law and Society (Portland, OR: Hart, 2009) 201 at 202 [Webber, “Naturalism”]. Webber defines a normative order as “a natural dimension of any human interaction, generated through the day-to-day business of human life, perhaps even definitional of the existence of society” (at 201).
- 9.
William Alford, “On the Limits of ‘Grand Theory’ in Comparative Law” (1986) 61 Wash L Rev 945.
- 10.
See generally, William Ewald, “Comparative Jurisprudence (I): What Was It Like to Try a Rat?” (1994–95) 143 U Pa L Rev at 1889–1905, 1912–16, 1924–25, 1936–43.
- 11.
This is an extremely brief outline. There are volumes written about each area of law.
- 12.
But see the extensive work of John Finnis, Natural Law and Natural Rights, Clarendon Law Series (Oxford: Clarendon Press, 1980).
- 13.
Borrows, supra note 2 at 23.
- 14.
Ibid. at 55.
- 15.
Each Gitksan person is born into his or her mother’s House, a matrilineal kinship group of about 150 persons who share a common ancestry. It is the House (wilp) that is the territory- and fishing site-owning entity. The term House originates from the historic longhouses, although members of the same House did not actually live under the one roof. Rather, House members were and are widely scattered by marriage and occupation. House members have rights and responsibilities in other Houses by virtue of their roles as spouses and clan members. See Richard Daly and Val Napoleon, “A Dialogue on the Effects of Aboriginal Rights Litigation and Activism on Aboriginal Communities in Northwestern British Columbia” (2003) 47:3 Social Analysis, The International Journal of Cultural and Social Practice 108.
- 16.
Each Gitksan House belongs to one of the four larger clans (pteex), which share a broader history: the Ganeda (Frog), Gisgahast (Fireweed), Lax Gibuu (Wolf), and Lax Skiik (Eagle).
- 17.
There are a number of theories about natural law, each with different perspectives on morality, authority of legal norms, and beliefs about human beings. For example, in one school of thought, the term “natural law” is about the laws of nature such as the law of gravity. Another school of thought holds that the organization of centralized states is a natural extension of natural individual rights. See generally, Wikipedia, The Free Encyclopedia, online: Wikipedia http://en.wikipedia.org/wiki/Natural_law; online: Internet Encyclopedia of Philosophy http://www.iep.utm.edu/n/natlaw.htm.
- 18.
See generally, Harold Cardinal & Walter Hildebrandt, Treaty Elders of Saskatchewan: Our Dream is That Our Peoples Will One Day Be Clearly Recognized as Nations (Calgary: University of Calgary Press, 2000).
- 19.
Lon L. Fuller, “Human Interaction and the Law” (1969) 14 Am J Juris 1 at 1.
- 20.
Ibid. at 2.
- 21.
Ibid. at 23.
- 22.
See Gerald Postema, “Implicit Law” in Willem Witteveen & Wibren van der Burg, eds, Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999) 255.
- 23.
Gerald J. Postema, “Classical Common Law Jurisprudence (Part II)” (2003) 3:1 OUCLJ 1 at 10. Postema contends that the reason common law is artificial is that “it is the disciplined practice of argument and disputation in a public forum – an art that had been called ratio artificialis long before Coke gave it currency in common law jurisprudence”.
- 24.
Val Napoleon, “Living Together: Gitksan Legal Reasoning as a Foundation for Consent” in Jeremy Webber & Colin McLeod, eds, Challenges of Consent: Consent as the Foundation of Political Community in Indigenous/Non-Indigenous Contexts (Vancouver: UBC Press, 2009) 45 [Napoleon].
- 25.
Gerald J. Postema, “Classical Common Law Jurisprudence (Part I)” (2002) 2:2 OUCLJ 155 at 155.
- 26.
See generally, Roderick Macdonald, Lessons for Everyday Law (Montreal: McGill University Press, 2002).
- 27.
Val Napoleon, Indigenous Legal Lodge Proposal for Treaty 8, (2008) [unpublished, archived with author].
- 28.
Val Napoleon, Angela Cameron, Colette Arcand, & Dahti Scott, “Where Is the Law in Restorative Justice” in Yale Belanger, ed, Aboriginal Self-Government (Purich, 2008) 348.
- 29.
Webber, “Naturalism”, supra note 8 at 202.
- 30.
Napoleon, supra note 24 generally.
- 31.
Ibid. at 24.
- 32.
On this point, I agree with Jeremy Webber’s scepticism as to the adequacy of the language of consent and whether consent can actually be deliberately and explicitly provided to form the political basis of societies. See Jeremy Webber, “Challenges of Consent” (Paper prepared for the Inaugural 2004 Conference of the Consortium on Democratic Constitutionalism: “Consent as the Foundation for Political Community”), online: University of Victoria http://www.law.uvic.ca/demcon/2004_program.htm at 2. According to Webber, dialogic theories of consent conceptualize “a community’s legitimacy as a function of the quality of its interactions, rather than of an historic (and indeed generally mythical) act of adherence” (at 22).
- 33.
Hedda Schuurman suggests that the current conception of “community” does not derive from Innu language or culture, and the experience of living within a fixed settlement is entirely foreign. Historically, Innu lived in small, mobile social units with a dynamic pattern of social organization and coherent identities, but with shifting social and geographic boundaries. One of the consequences of 1960s settlements has been a social stratification of subgroups that were created by contact – external privileging according to the degree of acculturation or isolation of the subgroups. This hierarchy now determines status, social positions, and political leadership. For the Innu, settlement has meant individual households, a cash economy and dependence, changes to Innu economic and social practices, breakdown of social relationships, centralized schools, and increased conflict. According to Schuurman, settlement has resulted in an anti-community consciousness that raises particular difficulties for leadership and the implementation of self-government. See Hedda Schuurman, “The Concept of Community and the Challenge for Self-Government” in Colin Scott, ed, Aboriginal Autonomy and Development in Northern Quebec and Labrador (Vancouver: UBC Press, 2001) 379.
- 34.
Richard Daly, Our Box Was Full: An Ethnography for the Delgamuukw Plaintiffs (Vancouver: UBC Press, 2005) at 202.
- 35.
For example, Adrian Tanner explains that since settlement, the Innu have experienced an epidemic of general dysfunction and social breakdown. The former practice for dealing with disputes was primarily avoidance; when a dispute occurred, hunting groups split up. However, once people settled in villages, this conflict avoidance was not longer possible. According to Tanner, while self-government offers the Innu a way to address their problems, a new conception of community must be developed that is based on Innu values and that is acceptable to the larger Canadian society. See Adrian Tanner, “The Double Bind of Aboriginal Self-Government” in Colin Scott, ed, Aboriginal Autonomy and Development in Northern Quebec and Labrador (Vancouver: UBC Press, 2001) 397.
- 36.
Friedland, supra note 1 at 16.
- 37.
John B. Zoe, Chief Executive Officer of the Tlicho Nation, spoke at a public gathering in Edmonton at the University of Alberta on 20 March 2006.
- 38.
See “The Habitat of Dogrib Traditional Territory: Place Names as Indicators of Bio-geographical Knowledge”, online: West Kitikmeot Slave Study http://www.wkss.nt.ca/HTML/08_ProjectsReports/08_habitat/08_habDogribTT.htm
- 39.
See generally, H. Patrick Glenn, Legal Traditions of the World, Sustainable Diversity in Law, 2nd ed (Oxford: Oxford University Press, 2004).
- 40.
This incident was shared by Matthew Wildcat during a class discussion at the University of Alberta (spring term, 2006). It was related to Matthew by his father, Brian Wildcat. According to Matthew, the reason that this elderly person was so forthright was that he was not forced into a position of defending a cultural practice against imposed change. Rather, the issue was dealt with as a community education matter in which community members’ experiences and ideas were valued.
- 41.
Richard Overstall, “Encountering the Spirit in the Land: ‘Property’ in a Kinship-Based Legal Order” in John McLaren, ed, Despotic Dominion: Property Rights in British Settler Societies (Vancouver: UBC Press, 2005) 22 at 40. Also see M. Jane Smith, Placing Gitxsan Stories in Text: Returning the Feathers. Guuxs Mak’am Mik’Aax (PhD Dissertation, UBC Faculty of Education, 2004) [unpublished, archived with the author].
- 42.
See generally, K.N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way (Norman: University of Oklahoma Press, 1941).
- 43.
Cardinal & Hildebrandt, supra note 18 at 34.
- 44.
Conversation between the author and Wes Fineday, March 2005, Saskatoon, Sask.
- 45.
See Brian Z. Tamanaha, “A Non-Essentialist Version of Legal Pluralism” (2000) 27:2 J L & Soc’y 296 at 319. According to Tamanaha, “[L]egal pluralists currently tend to see law in far more places than general social practices would support”(at 320).
- 46.
This is not to suggest that there could only be one system of law in a physical or geographic space. The reality is always much more complicated. Trade and other ways of establishing and maintaining international relationships meant that people were constantly negotiating different legal orders in the same space.
- 47.
Indian Act, RSC 1985, c. I-5.
- 48.
Friedland, supra note 1 at 123.
- 49.
Ibid. at 126.
- 50.
Ibid. generally.
- 51.
For the latest in the grim statistics on Aboriginal victims and offenders, see online: Statistics Canada www.statcan.ca/daily-quotedien/060606/dq060606b-eng.htm
- 52.
For a very interesting critique of how harmony is used to stifle internal conflict and challenges to the status quo, see Laura Nader, Harmony Ideology: Justice and Control in a Zapotec Mountain Village (Stanford, Cal.: Stanford University Press, 1990).
- 53.
Gerdine Van Woudenberg, “Placing Gender in the Mediation of Aboriginal Resource Claims and Conflicts” (2004) 34:3 Recherches Amérindiennes au Québec.
- 54.
Christine Miller & Patricia Chuchryk, eds, Women of the First Nations (Winnipeg: University of Manitoba, 1996).
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Napoleon, V. (2013). Thinking About Indigenous Legal Orders. In: Provost, R., Sheppard, C. (eds) Dialogues on Human Rights and Legal Pluralism. Ius Gentium: Comparative Perspectives on Law and Justice, vol 17. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-4710-4_11
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