I’m sitting in a hotel in Fort St. John, BC wondering what to do with myself now that my flight has been delayed. I’ve been sick for nearly two weeks now and I’m not exactly feeling up to seeing the sights…especially since there doesn’t seem to be any place here to buy seed beads!
It’s my first time in Treaty 8 territory on the BC side, and I came here for an amazing conference– or rather “An Exploratory Workshop: Thinking About and Practicing With Indigenous Legal Traditions“. In a nutshell, what we did was take indigenous stories and historical accounts, and we analysed them using the case-brief method that one is taught in common-law training. This way, we can begin to identify certain principles that form the foundation of individual indigenous legal traditions.
The case brief method asks you to break down the story (or legal case) in the following way:
- What is the problem or issue in the story?
- What are the relevant facts (what happens)?
- What was the decision or resolution?
- What is the reason for this decision or resolution?
It is a deceptively simple process. It it also a familiar one in many ways. I remember thinking about the stories I was told, and asking myself, “why did that happen? What went wrong?”. My daughters do the same thing today. They say things like, “Oh, he shouldn’t have done that! He was greedy and look what it got him!”
However, that almost unconscious recognition of certain principles being applied in these stories is not quite the same as consciously and actively drawing those principles out and seeing them more clearly. The principles we find in these stories are not unfamiliar to most native people, but when contrasted with western legal norms there are certainly some major divergences.
What I found particularly inspiring is that as a large group of people analysing these stories, we were all able to identify similar principles at play. Other workshops had been conducted previously and we got a glimpse at some of the earlier work done as well. The principles those groups identified were pretty bang on with what we came up with. In this way, I felt that it was clear we were not merely projecting our individual beliefs onto the stories. There were a fair number of non-native participants in this as well, so I do not even think we could be accused of all ‘thinking native’ and reading more into the stories than was actually there.
This was inspiring because it validated the process, and it allowed us to look at these stories in a way that the Canadian state has not yet figured out how to. It highlighted that our priorities are different than western legal and social systems. Different, but not incomprehensible. Not confused. Not stuck in the past and inapplicable to modern times.
What was particularly satisfying for me was that although there were shared legal principles across Cree, Anishinabek and Dene traditions, there were also some clear differences. No pan-Indianism here! I expect even greater divergences between other native peoples, particularly after reading Val Napoleon’s excellent dissertation on the Gitksan, “Ayook: Gitksan legal order, law and legal theory“. This dissertation really goes into some breathtaking detail about substantive and procedural legal rights and practices in the Gitksan culture, and highlights for me just how unique we are as peoples. Even if you just skim it, going for the stories she analyses, it’s a fascinating and important read.
A Quechua professor from Peru also joined us at the conference, Antonio Peña Jumpa (I link here to his blog, which is of course in Spanish). He has been studying the legal traditions of a number of indigenous groups in Peru, but mentioned that for political reasons he has been unable to do the same work with his own people. I assume, but do not really know, that this is an academic restriction that takes the position that you should not be a member of the people you study. I think it’s a stupid rule, ’nuff said.
Antonio presented to us an outline of the complex Aymara legal tradition. Another presenter, Isabel Altamirano-Jiménez who is Zapotec, discussed the role of women and water in her people’s traditions. Both speakers discussed the ways in which indigenous legal traditions have been supplanted and undermined by the imposition of western legal traditions. A very familiar theme.
Oddly enough, Isabel’s presentation reminded me of a book I bought my girls years ago, “The Woman Who Outshone the Sun“. Now, this book purports to be a Zaptoec story, but I don’t recall it saying which community the story was from and it says it is based on a poem, so its origins are somewhat suspect. Nonetheless, the story really focuses on water and on the woman’s role in relation to protecting and nurturing the water. I think I’ll read it again, with slightly different eyes this time.
In any case, the workshop stressed that this is just one method, one out of many that are yet to come, to help us revitalise and reapply our indigenous legal traditions. I think it was a very clear way of showing us in a tangible sense that our values and our traditions are valid and applicable to conflicts we continue to have today. We can approach our problems from a legal tradition that sits well with us, and that takes into consideration the values we hold as individual peoples. Isn’t that what the law should do? Reflect our values and strengthen our communities? It’s certainly not what the western legal traditions have done and no wonder.
One thing that kept coming to mind this weekend, was how many thousands of different legal traditions there are all around the world. We often do not recognise this. When we do hear of other legal traditions, particularly those that are considered ‘tribal’, it is usually horror stories we’re hearing. Rape-victims being forced to marry their rapists. Etc, etc, etc. Of course, so many of these stories confuse colonially imposed legal traditions with indigenous traditions, and worse present only the ‘bad decisions’, often without any context at all.
If all we chose to present from the Canadian legal systems were the horror stories, it is undeniable that those reading these stories would condemn the Canadian systems as barbaric, primitive, and unsuited to a modern era.
Of course that is not what is done. Instead, the Canadian systems are seen as somewhat flawed, but ultimately best suited to Canadian context and to Canadian values.
Not our values, obviously, but we are of the ‘barbaric, primitive and unsuited to a modern era’, right?
Legal diversity is seen as weakness. Anarchy. Confusion. Despite the fact that diversity of legal systems has always been, and continues to be, a reality all over this earth. It is important not to forget that fact.
Alright, time to pack up and head to the airport. Thank you, Treaty 8, for your most excellent hospitality! Many thanks in particular to the amazing women who worked the hot kitchen of the Fort St. John’s Native Friendship Centre for two and a half days straight to feed us such an abundance of food that it was impossible to finish it all! I definitely got my fry-bread fix!
âpihtawikosisân 
I just received the 600 page book Treaty No. 9 as a birthday present. No, I haven’t read it, and no, I can’t imagine when I’ll have time (I’m busy memorizing Cree vocabulary, ya done know).
While there were some parts of the British Empire where indigenous legal traditions were given weight by the incoming conquerors… everything I’ve read indicates that Canada was definitively not one of them (and, yeah, “everything I’ve read” is much less than everything, so the usual caveats of ignorance apply, but…). In Burma, the British did have the local scribes stack up the indigenous legal traditions, historical chronicles, etc., and then translated portions of them into English to serve as a prop in both negotiations and (at least in theory) in British governance of the newly annexed colony… we actually have many documents from the British observation of the indigenous trial system as a result. This process didn’t make that part of the British empire a kinder, gentler place for the natives, but it does reflect the fact that their policy in Burma was non-genocidal; in Canada and Australia, by contrast, it was sincerely genocidal. The French in Vietnam went through a surreal process of examining local legal traditions, claiming that their colony would uplift local jurisprudence to make it more European, but then, in reality, very much relied on local legal norms (and judges and customs) to give force to their rule at all, and so on (…the story is dramatic, involving a surreal debate surrounding methods of capital punishment, etc. …). Any high court decision you read from the British colonies of India is a surreal document, that will generally make comparative reference to local Hindu and Muslim law (including unwritten traditions, testified to by Brahmins in court), before rendering a decision based on British notions of logic. Within the British Empire, the disregard for local legal traditions in one place (vs. ruling through them in another) is probably symptomatic of the genocidal mode of colonization (vs. very different assumptions of futurity elsewhere).
Although you may be tired of historical perspectives that pretty much render the First Nations of Canada as the hardest done-by in world history… well, looking elsewhere in the world’s history of European colonization, Canada is certainly among the worst.
I was surprised when I first learned about the concept of respecting the lex loci, or existing legal traditions of the area. The Romans did it too. I suppose it’s one way to keep the people you have ostensibly subjugated in check. In a way, it helps add ‘legitimacy’ to colonial oppression by maintaining some form of ‘internal decision making’. That’s the cynical view. On the other hand, reviving legal traditions when they have been very aggressively stamped out and banned is very difficult, so I’m not sure which is worse really.