Envisioning an indigenous jurisdictional process: A nehiyaw (Cree) law approach.

Author:Makokis, Janice

Acknowledging Indigenous Laws and Legal Orders

Indigenous laws and legal orders are the first original laws of the land we now call "Canada" and have been in existence since time immemorial. However, the imposition of western colonial law(s), legal systems and policies upon Indigenous Peoples and Nations has had significant impact upon our ability to govern, maintain peace and social order within Indigenous societies. Indigenous governance structures are based in ceremonial lodges and spiritual laws stemming from the connection Indigenous Peoples have with the land. The banning of ceremonies under early Canadian legislation such as the 1884 Indian Act interrupted the transmission of Indigenous laws and legal orders to people within Indigenous Nations. This disruption of Indigenous governance structures can be seen in the inter-generational traumas of addictions, mental health and health issues that Indigenous peoples are encountering in their communities, in their over-representation in the criminal justice system and in the high percentage of Indigenous children in care.

Discourse on Indigenous legal orders are beginning to make their way into law schools, law practice(s) and the courts, which is helpful in facilitating discussion on a meaningful Nation to Nation relationship. It should be pointed out that Indigenous laws and legal orders are separate and distinct from common and civil law traditions that are taught in university law schools. I would even go so far as to say that Indigenous law is distinguishable from "Aboriginal Law" which is the source of law derived through the courts' interpretation of colonial legal instruments under common and civil law such as The Royal Proclamation of 1763, the British North American Act and the Canadian Constitution as they relate to "Aboriginal" people.

Towards the end of my legal studies, the concept of 'Indigenous laws and legal orders' started to gain traction within the law school and legal practice environment. Fortunately, this discourse on Indigenous legal orders is beginning to make its way into more law schools, law practices and the courts, which gives the discussion about 'alternative' Indigenous processes more consideration. The release of the Truth and Reconciliation Commission's Calls to Action in 2015, alongside the Canadian government's endorsement of the United Nations Declaration on the Rights of Indigenous Peoples in 2016 have provided the necessary momentum to begin thinking...

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