An inside job: engaging with indigenous legal traditions through stories.

• Author: Napoleon, Val
• Position: Canada - Moving from the Why to the How of Indigenous Law

There has been a growing momentum toward a greater recognition and explicit use of Indigenous laws in the past several years. According to the Truth and Reconciliation Commission's final report, the revitalization and recognition of Indigenous laws are essential to reconciliation in Canada. How, then, do we go about doing this? In this article, we introduce one method, which we believe has great potential for working respectfully and productively with Indigenous laws today. We engage with Indigenous legal traditions by carefully and consciously applying adapted common law tools, such as legal analysis and synthesis, to existing and often publicly available Indigenous resources: stories, narratives, and oral histories. By bringing common pedagogical approaches from many Indigenous legal traditions together with standard common law legal education, we hope to help people learn Indigenous laws from an internal point of view. We share experiences that reveal that this method holds great potential as a pedagogical bridge "into" respectful engagement with Indigenous laws and legal thought, within and across Indigenous, academic, and professional communities. In conclusion, we argue that, while this method is a useful tool, it is not intended to supplant existing learning and teaching methods, but rather to supplement them. In practice, we have seen that this method can be complementary to learning deeply through other means. There are many methods to engage with Indigenous laws, and there needs to be critical reflection and conversations about them all.

Depuis plusieurs annees, on assiste a un enthousiasme croissant en faveur d'une plus grande reconnaissance des lois autochtones et dun recours explicite a celles-ci. Selon le rapport final de la Commission de verite et reconciliation, la revitalisation et la reconnaissance des lois autochtones sont essentielles a la reconciliation au Canada. Comment, alors, allons-nous nous faire cela? Dans cet article, nous presentons une methode qui, selon nous, promet de travailler respectueusement et de facon productive avec les lois autochtones. Nous abordons les traditions juridiques autochtones en appliquant soigneusement et consciemment des outils adaptes de la common law, tels que l'etude de cas et l'analyse juridique, aux ressources autochtones existantes, qui sont souvent publiques : des histoires, des recits et des traditions orales. En rassemblant des methodes pedagogiques communes a de nombreuses traditions juridiques autochtones et des methodes d'education juridique classiques de common law nous esperons aider l'apprentissage des lois autochtones d'un point de vue interne. Nous partageons des experiences qui demontrent le grand potentiel de cette methode et son role de pont pedagogique << vers >> une discussion respectueuse au sujet des lois et de la pensee juridique autochtone au sein et entre les communautes autochtones, universitaires et professionnelles. Bien que nous croyions que cette methode constitue un outil utile, nous argumentons en conclusion qu'elle ne vise pas a remplacer les methodes d'apprentissages et d'enseignement existantes, mais vise plutot a les completer. En pratique, nous avons vu que cette methode est complementaire dans la mesure qu'elle permet un apprentissage plus profond par d'autres moyens. Il existe, plusieurs methodes permettant d'aborder les lois autochtones, de meme que les conversations et la reflexion critique a leur sujet.

Introduction I. Creating Space for Indigenous Legal Traditions: Building Momentum in Canada II. Stories as Tools for Thinking in Indigenous Societies III. Legal Scholarship: Moving from a Philosophical Treatment of Indigenous Laws to a Practical, Problem-Solving Level IV. Bringing Home the Method: Using Law School Tools to Learn Indigenous Laws from an Internal Point of View V. The Fort St John Workshop: An Example of Respectfully Engaging with Indigenous Legal Traditions across Communities through Legal Analysis of Stories Conclusion: An Invitation to Full Engagement It used to be that every family with a living grandfather or grandmother possessed a storyteller from another time. The duty of storytellers was to tell stories every day. That is why Dene tradition is so complete, as far back as the days when [Naa]cho--giant now-extinct animals--roamed the world. Since it's difficult to keep track of things if you try to tell a long story from one day to the next, each day's story was complete in itself. These short tales, put together, made up complete stories. (1)

Introduction

Many Indigenous and non-Indigenous scholars have effectively resisted the seemingly unstoppable and annihilating colonialism that has attempted to stamp out even the possibility of imagining Indigenous legal thought. We appreciate those scholars who have examined and challenged the relationship between Canadian state law and Indigenous legal traditions, and who have developed theoretical frameworks within which new or renewed relationships of mutual respect are possible between Indigenous and non-Indigenous peoples. (2) We appreciate the groundbreaking philosophical and descriptive treatments of Indigenous legal traditions in some of this scholarship. (3)

Now we want more. It is time. It is essential for the present and future health of Indigenous societies that we keep moving. Indigenous legal traditions are fundamentally about Indigenous citizenry, self-determination, and governance. They contain the intellectual resources and tools for public reason and deliberation that are essential for addressing both the internal and external challenges that Indigenous communities face today. These challenges are varied, involving questions of authority and legitimacy, community safety, and lands and resources. Interest in serious and systematic engagement with Indigenous legal traditions is building in Canada across professional, academic, and Indigenous communities. If this movement is going to be sustained and cultivated, we need shared frameworks for engaging with Indigenous legal traditions within and across Indigenous, professional, and academic fields. The international and domestic discourse of Indigenous self-determination is in need of critical and grounded scholarship on Indigenous legal traditions--comprehensive traditions that are inclusive of "deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught." (4)

Indigenous law, like other aspects of Indigenous peoples' lives, has been impacted by colonization. At the Truth and Reconciliation Commission's Knowledge Keepers Forum in 2014, Mi'kmaq scholar and elder, Stephen Augustine, explained the Mi'kmaq concept for "making things right", a wise and insightful way to conceptualize changes in Indigenous law. He provided a metaphor of an overturned canoe in the river. He said:

We'll make the canoe right and ... keep it in water so it does not bump on rocks or hit the shore.... [When we tip a canoe] we may lose some of our possessions.... Eventually we will regain our possessions [but] they will not be the same as the old ones. (5) Metaphorically, we are regaining our possessions and, in this article, we set out one method for doing this. Our Indigenous legal research method brings common pedagogical methods from many Indigenous legal traditions (oral histories, narratives, and stories) together with standard common law legal education (legal analysis and synthesis). This method is one simple, teachable, and transparent way of engaging with Indigenous laws within and across communities, and within and across legal orders. From our experience with Indigenous communities across Canada, we see its foundational potential for the kind of robust and respectful engagement needed to work critically and usefully with Indigenous legal traditions today--thereby bringing them into their "rightful place among the world's dispute resolution systems" in the future. (6)

1. Creating Space for Indigenous Legal Traditions: Building Momentum in Canada

   Of course there are real issues at stake--jurisdiction, economic development opportunities, federal funding, but these things are not necessarily assured even if tribes mirror external law. The idea of creating law that is uniquely our own, based on our values should encourage dialogue, ignite debate, and be tested and explored in practice. I believe the threat to our cultural survival as distinct [I]ndigenous people is real, and we have survived in the face of this threat, but we must do what we can when we see the opportunity to reinforce our way of life. (7) The Truth and Reconciliation Commission of Canada (TRC) released its final report on 2 June 2015. The report contains ninety-four calls to action, including specific measures to support the recognition, revitalization, and implementation of Indigenous legal traditions. (8) For example, the TRC calls on the federal government to recognize and implement "Aboriginal justice systems", (9) to integrate Indigenous laws into treaty and land claim negotiation and implementation processes, (10) and to establish "Indigenous law institutes for the development, use, and understanding of Indigenous laws." (11) Law schools are encouraged to create mandatory courses that include Indigenous laws, (12) whereas law societies are summoned to ensure that lawyers receive training in Indigenous laws. (13) In the Summary of the Final Report, the TRC strongly advocates for Indigenous peoples to have greater control over their own laws and legal mechanisms:

   Aboriginal peoples must be recognized as possessing the responsibility, authority, and capability to address their disagreements by making laws within their communities. This is necessary to facilitating truth and reconciliation within Aboriginal...