GOING CIRCULAR: INDIGENOUS LEGAL RESEARCH METHODOLOGY AS LEGAL PRACTICE.

• Date: 01 June 2020
• Author: Hanna, Alan
• Published date: 01 June 2020
• Author: Hanna, Alan

Working in Indigenous communities evokes thoughts about appropriate research methodologies. The default to academic methodologies raises questions about what Indigenous research methodologies might look like. Although there is growing discourse on this subject, I often wonder why Indigenous methodologies still tend to follow Western academic approaches. In this paper, I explore possibilities for alternative ways of understanding Indigenous research methodologies that are aligned with Indigenous practices. I argue that when research is conducted according to the ways and worldview of a particular Indigenous group, the researcher will find themselves practising the laws of that society, as many legal principles are exhibited through the manner in which a person walks in the world. Legal research specifically invites and encourages researchers to work in accordance with the very principles being learned. A methodology arising from a particular worldview and the legal order that it entails will promote practices long entrenched in its communities. Walking in such a manner allows a person to break free from traditional Western methodologies and begin to see the world through the cyclical movements of Indigenous knowledge and practice.

Travailler au sein de communautes autochtones suscite des reflexions concernant les methodes de recherche appropriees. Le recours par defaut aux methodologies academiques suscite des questions a propos de ce a quoi les methodologies de recherche autochtones peuvent ressembler. Bien qu'il y ait de plus en plus de discussions a ce sujet, nous nous demandons souvent pourquoi les methodologies autochtones ont tendance a, encore, se fonder sur les methodes academiques occidentales. Dans cet article, nous explorons des manieres alternatives de comprendre les methodologies de recherche autochtones afin qu'elles soient en phase avec les pratiques autochtones. Nous soutenons que lorsque la recherche est conduite en fonction du mode de vie et de la vision du monde (<< worldview >>) d'une communaute autochtone distincte, le chercheur se trouvera a pratiquer le droit de cette societe, puisque plusieurs principes juridiques sont mis en lumiere a travers la facon dont un individu avance et evolue dans le monde qui l'entoure. La recherche juridique invite et encourage specifiquement les chercheurs a travailler selon les principes memes etant appris. Une methodologie fondee sur une vision du monde particuliere, ainsi que l'ordre juridique qu'elle implique, en viendra a faire la promotion de pratiques longtemps enracinees au sein des communautes dont elle est issue. Avancer d'une telle facon permet a un individu de se liberer des methodologies occidentales traditionnelles et de voir le monde en fonction des mouvements cycliques du savoir et des pratiques autochtones.

Introduction The Concept of Circularity Indigenous Research Methodologies Oral Tradition: A Source of Knowledge The Adapted Case Brief Method Common Law Methodology for Identifying Indigenous Laws Interpretation of Concepts Language Translation Stories as Research Resource Moving Beyond the Adapted Case Brief Method Stories in Research Respect Preparation Learning Humility mid die Learning Process Stories Reladonality Land-Based Learning Reciprocity Honoraria Sharing Conclusion Introduction

In the expanding area of Indigenous research methodologies, the utility and shortcomings of various theories, methods, and practices are often assessed and debated as a means of improving research from Indigenous perspectives. (1) Research generally is rooted in Western philosophical thinking underpinned by the scientific method, making much of academic research foreign to Indigenous ways of knowing. (2) A solid foundation is being established for the expansion of Indigenous research methodologies that extensively investigate the many nuances of the subject area. (3) I can only hope to add to this growing area of knowledge by focusing on the methodological approach to Indigenous legal research applied in my own work into Indigenous laws.

Many questions arise and are debated when it comes to doing research within Indigenous legal orders: How do people do the work of learning, articulating, and implementing Indigenous laws? Who should do this work? What methodological approaches are available to inform the processes involved in answering these questions? I strive to broach some answers to these questions. More specifically, I will provide an analysis of what has become known in academic circles as the adapted case brief method applied to oral traditions for the purpose of identifying legal principles.

In the analysis, I consider the benefits and limitations of applying a common law legal method (the case brief), used in first-year law school training, to Indigenous oral stories. Ultimately, I argue that, although this method is important in facilitating an introductory common law legal education to Indigenous laws, on its own, the method is limited in its depth of analysis. When moving to advanced legal research into Indigenous legal orders, I propose that a nuanced, balanced, holistic methodological approach in research will assist in the development of this particular field of inquiry. Questions regarding the substantive laws are important for articulating a legal order; however, understanding how Indigenous laws are already functioning will illuminate how these laws may be applied to contemporary matters. (4) Additionally, transitioning from working with stories using a common law method such as the adapted case brief method to a dialogic analysis with multiple sources produces deeper engagement with the contextual social and legal milieu of a legal order. A move toward a holistic analytical approach should begin from within the lens of the particular legal order being studied. I ground this suggestion in a concept of cyclical patterns, or circularity. (5)

A colleague once said as he was heading into my class to give a presentation, "Let's get circular," suggesting it was time to leave the Western academic methods of teaching and learning behind in exchange for an Indigenous practice of learning grounded in creating relationships based on humility, respect, and reciprocity. (6) As relationships are governed by a group's legal order, when students and researchers practise Indigenous research methodologies according to the group with whom they are working, they inevitably engage in a legal practice.

In this paper, I argue that engaging in Indigenous research methodologies of the specific group within which a researcher works amounts to the practice of that society's legal order, as to move within the norms, rules, processes, and obligations of a particular society is a manner of practising Indigenous law. To prove this, I begin by discussing a concept of circularity, or cyclical patterns, as offering one point of entry into thinking about Indigenous ways of knowing. The discussion then turns to how Indigenous research methodologies have their own origins based in community and family teachings, which exist independently of research standards and categories set by Western academic institutions. I follow this discussion with a careful analysis of the application of Western research methods, particularly the common law case brief analysis, to Indigenous knowledges contained in oral traditions. This analysis also considers concerns about translating concepts across worldviews and languages, while arguing that despite the concerns, translation and interpretation are not only necessary, but often expected as part of the individual nature of learning from Indigenous teachings. Once fully articulated, the discussion turns to examples of how conducting research in Indigenous legal orders according to the laws learned in the research constitutes legal practice.

The Concept of Circularity

The term going circular is about understanding differences between disparate worldviews, shifting from the Western logic of linearity to an Indigenous logic of cyclical patterns. (7) For example, Western civilization's concept of progress is based on the steady, linear trajectory from the undeveloped to the developed (e.g., resources, land, societies). (8) In contrast, many Indigenous understandings of being in and movement through the world consist of cyclical patterns (seasonal rounds, renewable harvests, reciprocal relationships). These differences in the two examples (progress vis-a-vis ways of being) underpin institutions developed in the different societies (Western vis-a-vis Indigenous). Capitalism and consumerism drive progress, which takes from the natural environment with a stunning efficiency that maximizes profits while belching out unwanted by-products onto the land and into the waters and skies. This process chews up trees, gulps up millions of tonnes of marine life, and tears minerals from massive holes in the earth producing toxic runoff, encouraging governments to sell the natural environment in a mad commodification of the land's natural inhabitants. (9) This is linear progress--linear, unsustainable development limited only by the demands of an ever-increasing global human population.

Indigenous ways of being also allow people to take from the land, but in a manner that follows cyclical patterns based on reciprocal relationships with non-human partners. The seasonal round allows for hunting certain species at different times of the annual cycle, when they provide the most food and are least impacted by selective depletion of the population. Reciprocal relationality ensures that in exchange for animals giving themselves to people, people ensure the animals' continued viability. (10) Animals are our relations--natural relations as opposed to natural resources. Healthy environments ensure the best likelihood for healthy, viable animal populations, be they terrestrial or marine. Attention to the circular life-patterns produces a different logic for...