Heroes, tricksters, monsters, and caretakers: indigenous law and legal education.

Author:Borrows, John
Position::Abstract through II. Organizing Indigenous Law on Its Own Terms, as Best as We Can A. Learning from the Windigo: Categorizing Anishinaabe Law p. 795-820 - Canada - Moving from the Why to the How of Indigenous Law

Teaching Indigenous peoples' own law in Canadian law schools presents significant challenges and opportunities. Materials can be organized in conventional or innovative ways. This article explores, how law professors and others might best teach Indigenous peoples' law. Questions canvassed include: whether Indigenous peoples' law should primarily be taught in Indigenous communities, whether such law should even be taught in law schools, whether it is possible to categorize Indigenous peoples' law or teach it in English, and whether it is possible to theorize Indigenous peoples' law within a single framework or organize the subject within common law categories. While this article suggests that Indigenous peoples' law can be discussed in numerous ways, including within conventional law school frameworks, it emphasizes that such law is best taught in other ways. Indigenous legal traditions should be organized in accordance with Indigenous frameworks. Some of these frameworks include Heroes, Tricksters, Monsters, and Caretakers. Using these Anishinaabe law examples, this article stresses how the teaching of Indigenous peoples' law should be done in culturally appropriate ways that open rather than confine fields of inquiry within Indigenous law and practice.

Enseigner le droit autochtone dans une ecole de droit canadienne presente des defis et des opportunites importants. Le materiel du cours peut etre organise de facon conventionnelle ou innovatrice. Cet article explore les meilleures methodes pour enseigner le droit autochtone. Les questions abordees par l'article incluent: si le droit autochtone devrait etre enseigne a des communautes autochtones, si l'enseignement de ce droit est meme approprie dans les ecoles de droit, s'il est possible de categoriser ce droit ou de l'enseigner en anglais, et s'il est possible de developper ce droit selon un seul modele theorique ou de l'organiser selon les categories de la common law. Bien que cet article suggere qu'on peut discuter du droit autochtone de differentes facons, incluant la methodologie conventionnelle adoptee par les ecoles de droit, il souligne que ce droit est le mieux enseigne selon une differente approche. Les traditions juridiques autochtones devraient etre organisees en conformite avec les modeles autochtones. Parmi ees modeles, on retrouve les heros, les tricksters, les monstres et les gardiens. En utilisant ees exemples du droit Anishinaabe, cet article insiste que l'enseignement du droit autochtone devrait prendre des formes culturelles appropriees, qui elargissent plutot que limitent la theorie et la pratique du droit autochtone.

Introduction I. Challenges in Organizing the Teaching of Indigenous Peoples' Own Laws A. Should Teaching Indigenous Law Remain Primarily within Indigenous Communities? B. Should Indigenous Law Be Taught in Law Schools? C. Is It Possible to Categorize Indigenous Law? D. Should Indigenous Law Be Taught in English? E. Can Indigenous Law? Be Organized by One Theory? or Approach? F. Can Indigenous Law Be Organized by Common Law Categories? II. Organizing Indigenous Law on Its Own Terms, as Best as We Can A. Learning from the Windigo: Categorizing Anishinaabe Law B. Heroes, Tricksters, Monsters, and Caretakers 1. Heroes 2. Tricksters 3. Monsters 4. Caretakers Conclusion Introduction

My friends and I are teaching Indigenous law at the University of Victoria Faculty of Law. (1) We are also working with various communities across Canada in helping them to reinvigorate their constitutional, regulatory, and dispute resolution systems. (2) We understand that Indigenous legal traditions contain vast resources for assisting individuals and communities in reasoning through tough problems. (3) Despite centuries of dispossession, Indigenous legal traditions are vibrant sources of knowledge. (4) They pragmatically assist in finding answers to complex and pressing legal questions (5) and contain significant sources of authority. (6) They are precedential, that is, standard setting, (7) and generate criteria for making sound judgments. (8) Indigenous law helps produce binding measurements through persuasion and compulsion, (9) is attentive to ethical redress and remedial actions when harm has occurred, (10) and facilitates genuine gift giving and bequests. (11) Indigenous laws can be constitutional. (12) They can support the creation of internally binding obligations. (13) Indigenous peoples' own legal systems also undergird the creation of intersocietal commitments with external bodies. (14) Evidence of Indigenous laws' force is found in various agreements related to consultation, accommodation, contractual matters, and treaties. (15) Indigenous laws are also a key ingredient in protecting group and individual privileges and freedoms. (16)

My colleagues and I are united in our desire to introduce students to both the broad outlines and subtle complexities of Indigenous peoples' own legal traditions. We are also united in our commitment to be open to constructive critique. We strive to respect different visions concerning our work. We also try to encourage one another. Sometimes law professors fail to attend to this vital human need. Indeed, law journal articles aimed at encouragement seem far less prominent than other forms of review.

One question our work has prompted relates to the organization of student materials. This might seem like a mundane issue, but it has significant implications. The conceptualization of Indigenous law has a direct impact on how people receive and apply it. Law professors both reflect and generate law in conveying legal traditions. (17) In another context, judges and lawyers do the same thing. (18) No matter the legal tradition, law is a product of human agency; it is not an objective or neutral field. (19) Yet, as law teachers working with Indigenous communities, we have a distinct context. Indigenous peoples have long been colonized by other people's views of their best interests. (20) Indigenous social organization has been manipulated to serve interests that are not its own. (21) We do not want to replicate this pattern. We are responsible to the communities with which we work, often through explicit commitment. Many of us are Indigenous ourselves. We have deep roots in our home communities. (22) Most of us have also spent our lives interacting with Indigenous groups. Moreover, our students' future successes may be largely dependent on our proper framing of the law.

Thus, the question of how to organize student materials has high stakes and is deeply personal. It is also fraught with potential for the abuse of power. (23) We have paid particular attention to gender in this regard, among other issues. (24) Like all other societies on Earth, (25) Indigenous peoples are flawed; (26) they possess and require law to deal with their disorders. There is also profound wisdom and great beauty within Indigenous societies. They have significant legal insight about how to relate to one another and the Earth. As teachers of Indigenous law, we attempt to keep our eyes wide open to Indigenous societies' and laws' complexities. The study and practice of Indigenous law is a rich field of inquiry. We are very enthusiastic about our work. We think it makes a positive difference. We believe it sits at the crossroads of Indigenous law's revitalization.

Our efforts to organize materials and facilitate student engagement with Indigenous laws can occur on various scales. It can embrace the entire field of Indigenous peoples' own laws, writ large, on global and national scales. (27) It also involves work with specific systems of Indigenous law at a First Nation, band, village, settlement, or clan level. (28) We have been asked if it is possible to organize materials across Indigenous legal systems. We have ourselves wondered if generalities at more abstract levels can be identified. At present, we have largely shied away from this task, though I have tentatively identified various sources of Indigenous laws. (29) Moreover--in an article in this special issue--my colleagues Val Napoleon and Hadley Friedland have created a methodology for working with diverse traditions through stories. (30) This article represents a further small addition to this generalist literature. Despite forays into larger fields, most of us feel more comfortable working with particular legal systems, such as Mi'kmaq, Anishinaabe, Sewepmec, Tsilhqot'in, Salish, Inuit, or Metis legal traditions. (31) However, even in this work, we are at the start of our journey. There are still huge questions about how to best accomplish our task.

This article considers questions related to the development of effective organizational approaches for teaching students Indigenous peoples' laws. This is both a theoretical and pragmatic concern (though the effective real-world application of Indigenous law is our primary objective). This article concludes that answers to these questions are complex and will never be answered with exactness. At the same time, it suggests that standards of perfection and exactness should not undermine best efforts to serve Indigenous communities and to strengthen Canadian law more generally.

In making these points, this article addresses six challenges encountered in organizing the teaching of Indigenous laws. It closes by using Anishinaabe law examples to illustrate how law might be arranged in culturally appropriate ways that open rather than confine fields of inquiry. (32) The categories of Heroes, Tricksters, Monsters, and Caretakers are considered as possible subject-matter fields for teaching Anishinaabe law. In this light, this article suggests that it is possible to...

To continue reading