REVITALIZING

INDIGENOUS LAWS

“How we see, understand and work with indigenous law depends on what we think law is and what our expectations of it are. Law is not separate from us. It is what we do, and law’s existence depends on our serious engagement with it. Indigenous law needs to interact critically with other legal orders and it needs to do so in a way that protects the integrity of each legal order.”
– Dr. Val Napoleon, LL.B., Ph.D., Academic Lead

Project Documents

  • Working with Indigenous Law
  • Our Research Method

    Working with Indigenous Law

    How we see, understand and work with indigenous law depends on what we think law is and what our expectations of it are. Law is not separate from us. It is what we do, and law’s existence depends our serious engagement with it. Indigenous law needs to interact critically with other legal orders and it needs to do so in a way that protects the integrity of each legal order – Dr. Val Napoleon

    In Canada there is increasing acknowledgment that Canada is a multi-juridical country. Various American Tribal Judges have called for practical and respectful ways to engage with Indigenous legal traditions in an ongoing way. This project takes one approach toward drawing on and drawing out the rich intellectual traditions available to Indigenous people for reasoning through legal problems and the issues Indigenous communities are struggling with today.

    Like other laws, Indigenous laws are about citizenship, governance, managing conflict and providing tools for challenging power imbalances, and interacting with other peoples beyond one’s own society. A robust engagement with Indigenous laws includes making these laws more accessible, understandable and applicable today, considering law’s legitimacy and authority, how law changes over time, and the ways in which law is about relationships. This work can and should reinvigorate deliberative traditions and respectful debate between and within Indigenous communities.

    Shifts in Assumptions

    Engaging Practically and Respectfully

    AJR Research Coordinator, Hadley Friedland, explains that we may have to make certain shifts in our thinking and perspectives in order to do the necessary intellectual work with Indigenous legal traditions in order to move from a philosophical view to a practical one:

    The first shift is a shift in assumptions: To move past stereotypes in materials.

    1. Reasoning and Reasonable: Indigenous peoples were and are reasoning people with reasonable social and legal orders.
    2. Present Tense: Use present tense to talk about and consider indigenous law – not relegated to the past
    3. Particular: Think about indigenous laws as a particular response to universal human issues

    The second shift is a shift in our questions: To move from generalizations to specifics.

    From: To:
    What is aboriginal justice? What are the legal concepts and categories within this legal tradition?
    What are the cultural values? What are the legal principles?
    What are the “culturally appropriate” or “traditional” dispute resolution forms? What are the legitimate procedures for collective decision-making?
    OVERALL SHIFT:
    What are the rules? What are the legal principles and legal processes for reasoning through?
    What are the answers? What are the issues?

    Our Research Method

    The AJR Project’s approach was to engage with Indigenous laws seriously as laws. Researchers analyzed publically available materials and oral traditions within partner communities, using adapted methods and the same rigor required to seriously engage with state laws in Canadian law schools. Researchers used an adapted ‘case brief’ method’ to analyze a number of published and oral stories, and identify possible legal principles. They presented this work to elders and other knowledge keepers within our partner communities, who graciously shared their knowledge, opinions and stories with them. This helped researchers to clarify, correct, add to and enrich their initial understandings. The results were synthesized and organized in an analytical framework for accessibility and ease of reference.

    Project Phases:

    The AJR project began in May 2012 with an Intensive Orientation course taught by Academic Lead, Val Napoleon and Research Coordinator, Hadley Friedland, at the University of Victoria Faculty of Law in Victoria, BC.

    Here are the six phases of the research project:

    • Phase 1: Intensive Orientation – Exploring the Project, the Method and the Critical Questions
    • Phase 2: Initial Analysis – Analysis of publically available resources using the adapted case brief method
    • Phase 3: Community Based Research – Interviews and conversations with Elders and others
    • Phase 4: Integrated Analysis and Synthesis
    • Phase 5: Community Presentations – Space for feedback and follow-up questions
    • Phase 6: Developing Community and Academic Resources

    Research Questions:

    The broad research objective of this project is found in the name: “Accessing Justice and Reconciliation”. In order to make justice and reconciliation truly accessible through Indigenous laws today, we knew we needed to move the work beyond broad descriptive or philosophical accounts of these laws to more specific results that communities can access, understand and use on the ground if they want to. We broke down the broad research objective of accessing justice and reconciliation into two focused research questions that may assist communities both to respond to the residential school legacy and impacts and to build toward a stronger, healthier future. These research questions were:

    Residential Schools facts, motives and history:(Harm caused by the State and Residential Schools to Indigenous students, their families and communities) Residential School impacts:“Residential School Legacy” or“Intergenerational Trauma”(Indigenous people harming other people within communities today).
    = Inter-group harms and conflict = Intra-group harms and conflicts
    = Research Question:How did/ does this Indigenous group respond to harms and conflicts between groups? = Research Question:How did/ does this Indigenous group respond to harms and conflicts within the group?

    We note that, while these research questions flow from the fact and impact of the residential schools within Indigenous communities, they are also core questions that any functional social or legal order must minimally be able to address. Thus they form a vital part of a future vision of reconciliation that sees Indigenous societies and communities as strong, self-governing, vibrant and healthy places into many future generations.

    Analytical Framework

    The analytical framework used to approach, explore and organize the information gathered in this project consists of 5 parts. This framework is not about changing information, but rather organizing it in a specific way so it can be more effectively accessed, understood and applied. In answering the research question, student researchers were asked to look for:

    1. Legal Processes: Characteristics of legitimate decision-making/problem-solving processes, including:
      1. Who are authoritative decision makers?
      2. What procedural steps are involved in determining a legitimate response or resolution?
    2. Legal Responses and Resolutions: What principles govern appropriate responses and resolutions to harms and conflicts between people?
    3. Legal Obligations: What principles govern individual and collective responsibilities? Where are the “shoulds”?
    4. Legal Rights: What should people be able to expect from others
    5. General Underlying Principles: What underlying or recurrent themes emerge in the stories and interviews that might not be captured above?

    On a broader level, there are 2 important functions this analytical framework serves. First, it focuses our attention to the specifics and working details of Indigenous legal traditions, rather than remaining at the level of broad generalities, which can flatten the complexity of these traditions into over-simplified or pan-indigenous stereotypes, and are hard to imagine applying to concrete issues. Second, while focusing on specific details, it reminds us that, just as in other legal traditions, specific principles, practices and aspirations within Indigenous legal traditions do not stand alone, but are all interconnected aspects of a comprehensive whole.

    Research Outcomes

    The outcomes of the research are reports based on the analytical framework for each of the distinct Indigenous legal traditions considered. Materials will be given back to partner communities, and will be used as the basis for indigenous law curricula development.

    For the participants involved at the University of Victoria (UVic), the big picture of the work being done in the AJR project is working towards a proposed four-year combined law degree program, leading to professional degrees in both the common law (Juris Doctor or JD) and indigenous legal traditions (Juris Indigenarum Doctor or JID).

    Through and alongside this project, UVic is also establishing its Indigenous Law Research Clinic The Indigenous Law Research Clinic (ILRU) has two inter-related parts; Indigenous Law Research Clinic and the development of resources for the proposed Indigenous law degree program. The Clinic partners with communities in order to investigate, rigorously and critically, research questions pertaining to Indigenous law. This ground-breaking work includes researching and exploring specific areas law, legal processes and procedures, interpretive theories, legal pedagogies, and legal reasoning and decision making.

    The AJR project focuses on one specific area of law: inter- and intra-group harms, injuries, and conflicts. The UVic Indigenous Law Research Clinic will continue the research conducted in the AJR project, and is currently expanding to different specific areas of law such as family and child welfare, institution-building, governance, lands and resources, trade and business, etc.

    The Final Report

    This report discusses the major overall themes from the project, along with examples and recommendations for further work.

    IBA Accessing Justice and Reconciliation Project: Final Report

    Sample Documents

    Commissioned Papers

    Public Legal Education

    We believe that doing this research is a form of public legal education – the very processes of working with and articulating Indigenous law in a way that allows lessons to emerge from the testing of new approaches.

    We aim for results that are accessible and useful for communities.

    Our goal is to inspire a wide audience, especially youth, to explore Indigenous law in a way that gives them conceptual and practical tools to address conflict and violence constructively.

    Take a look at the posters and graphic narrative below for an introduction to working with and drawing out the law in the stories.

    The possibilities and forms for future public legal education are virtually endless!

    Posters

    The posters highlight three exemplary quotes for Val Napoleon and Hadley Friedland about working with Indigenous Legal orders.

    To request posters for yourself or your organization contact ilru@uvic.ca.

    Graphic Narrative and Teaching Guide

    WetikoCoverR-1This graphic narrative on Cree law draws on a synthesis of Cree law to tell a compelling story about conflicting legal orders (i.e. Canadian and Cree), community harms and violence, community disputes and responsibilities, the relevance and importance of Cree law for today’s legal challenges, and the hopes and aspirations of Cree legal traditions.

    Jim Henshaw skillfully adapted an innovative conference paper written by Professor Val Napoleon to create the script for the graphic narrative. Ken Stacey, an exceptionally talented cartoonist, took the lead on illustrations, and hired a team of talented artists to turn this captivating story into 32 pages of graphic art.

    The graphic novel Mikomosis and the Wetiko can be purchased at the UVic Bookstore or online. Order Mikomosis and the Wetiko online.

     

    Teaching guide now Available!

    Mikomosis and the Wetiko - Teaching Guide for Youth, Community, and Post Secondary Educators
    This teaching guide will help educators in post-secondary, secondary and community teaching positions to engage students in helpful and challenging ways according to the needs of their students. The guide provides six lesson plans, assorted activities and useful background readings. We encourage educators from a multitude of disciplinary backgrounds to use this guide, including but not limited to Law, Indigenous Studies, Governance programs, Women’s, Gender and Sexuality Studies, Sociology, Political Science, Anthropology, English, and Education. Read the guide | Order teaching guide online

    Revitalizing Indigenous law And Changing the Lawscape of Canada Brochure

    Revitalizing Indigenous law And Changing the Lawscape of Canada  BrochureSeveral years ago, three organizations came together to design and implement one of the most exciting national Indigenous law research projects in Canada. The organizations are: the Indigenous Law Research Unit (Faculty of Law, University of Victoria), the Indigenous Bar Association, and the Truth and Reconciliation Commission of Canada. This project was called the Accessing Justice and Reconciliation Project (AJR Project).

    The overall vision for this project was to honour the internal strengths and resiliencies present in Indigenous societies, including the resources within these societies’ own legal traditions. Read the brochure

    Additional Resources

    The following resources are recommended for those interested in learning more about this and other approaches to engaging with Indigenous legal traditions:

    • Isabel Altamirano-Jimenez “Nunavut: Whose Homeland, Whose Voices?” in Patricia A. Monture and Patricia D. McGuire (Eds.) First Voices: An Aboriginal Women’s Reader, (Inanna Publications, 2009).
    • Raymond D. Austin, Navaho Courts and Navaho Common Law: A Tradition of Tribal Self-Governance (Minneapolis: University of Minnesota Press, 2009).
    • CF Black, The Land is the Source of the Law: A Dialogic Encounter with Indigenous Jurisprudence (New York: Routledge, 2011).
    • John Borrows, “Physical Philosophy: Mobility and the Future of Indigenous Rights” in Benjamin J Richardson, Shin Imai and Kent McNeil (Eds.) Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oregon: Hart Publishing, 2009) at 403.
    • John Borrows, Canada’s Indigenous Constitution (Toronto: University of Toronto Press, 2010).
    • John Borrows, Drawing Out Law (Toronto: University of Toronto Press, 2010).
    • Gordon Christie, “Indigenous Legal Theory: Some Initial Considerations” in Benjamin J Richardson, Shin Imai and Kent McNeil (Eds.) Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oregon: Hart Publishing, 2009).
    • Aimee Craft, Breathing Life into the Stone Fort Treaty: An Anishinabe Understanding of Treaty One (Saskatoon: Purich Publishing, 2013).
    • Mathew Fletcher, “Rethinking Customary Law in Tribal Court Jurisprudence”
    • Hadley Friedland, “Reflective Frameworks: Methods for Accessing, Understanding and Applying Indigenous Laws” (2013) 11 (2) Indigenous LJ 1.
    • Luke McNamara, “The Locus of Decision-Making Authority in Circle Sentencing: The Significance of Criteria and Guideline” (2000) 18 Windsor Yearbook of Access to Justice
    • Val Napoleon, “Aboriginal Discourse: Gender, Identity and Community” in Benjamin J Richardson, Shin Imai and Kent McNeil, eds. Indigenous Peoples and the Law: Comparative and Critical Perspectives (Oregon: Hart Publishing, 2009).
    • Val Napoleon, “Thinking About Indigenous Legal Orders” in Rene Provost and Colleen Sheppard (Eds.), Dialogues on Human Rights and Legal Pluralism (New York: Springer, 2012)
    • Val Napoleon and Hadley Friedland, “The Inside Job: Engaging With Indigenous Legal Traditions Through Stories” in Tony Lucero & Dale Turner (Eds.), Oxford Handbook on Indigenous Peoples’ Politics (Oxford University Press, forthcoming 2014).
    • Justin B. Richland, Arguing with Tradition: The Language of Law in Hopi Tribal Court (Chicago: University of Chicago Press, 2008).
    • Rupert Ross, Returning to the Teachings: Exploring Aboriginal Justice (Toronto: Penguin, 1996).
    • Pat Sekaquaptewa, “Key Concepts in the Finding, Definition and Consideration of Custom Law in Tribal Lawmaking” (2007-2008) 32 Am Indian LR.
    • Emily Snyder, Gender and Indigenous Law
    • Kerry Sloan, A Global Survey of Legal Education and Research.
    • Renée McBeth, Revitalizing Indigenous Laws: Accessing Justice and Reconciliation

    Theses, Dissertations and Reports

    • Hadley 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).
    • Tracey Lindberg, Critical Indigenous Legal Theory, (PhD Dissertation, University of Ottawa, 2007).
    • Val Napoleon, Gitksan Legal Order, Law, and Legal Theory (PhD dissertation, Faculty of Law, University of Victoria, 2009).
    • Law Commission of Canada, Justice Within: Indigenous Legal Traditions, DVD (Ottawa: Minister of Supply and Services Canada, 2006)