Six Examples Applying the Meta-Principle Linguistic Method: Lessons for Indigenous Law Implementation.

• Author: Metallic, Naiomi

Abstract

Building on "Five Linguistic Methods for Revitalizing Indigenous Laws," this article explains and analyses six examples of implementation of the 'meta-principle' or 'word-bundle' linguistic method for Indigenous law revitalization. The method refers to using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group, and is the most utilized form of the five linguistic methods to date. The examples span its use by judges, public governments as well as Indigenous governments, and these actors employ different methods for identifying and interpreting the meta-principles. The variations between them reveal four categories of approaches to identifying, interpreting and implementing meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. There are different benefits and challenges associated with each category, and there are several lessons we can take from studying them. These examples and the categories show us that communities and their governments have real options, and precedents, to not only begin to revive their laws, but also to put them into practice. Introduction

This paper builds on my article, "Five Linguistic Methods for Revitalizing Indigenous Laws", where I identify and give illustrations of five distinct ways that Indigenous languages can be analyzed to draw out Indigenous law. (1) In that article, I propose and explain that there are at least five linguistic methods for Indigenous law revitalization, namely: 1) the "Meta-principle" method; 2) the "Grammar as revealing worldview" method; 3) the 'Word-part' method; 4) the "Word-clusters" method; and 5) the "Place names" method. Essentially, these methods are different ways to look at Indigenous languages to see how Indigenous groups think about and organize the world around them, and they can be revealing of values, principles and rules within an Indigenous group's legal order.

In this article, I focus specifically on the meta-principle linguistic method. The method entails using a word in an Indigenous language that conveys an overarching, normative principle of the Indigenous group that can be used as an interpretive prism through which to assess other laws, rules, actions or decisions, or to inform the creation of new rules or decisions. (2) Metis elder and scholar, Maria Campbell, described this idea as "[e]ach word is a bundle," meaning that each word is a bundle with teachings and tools to draw on. (3) The meta-principle (or "word-bundle") method is, by far, the most well-recognized and utilized form of the five linguistic methods. As the examples in this article show, its use in different contexts teaches that various approaches can be taken to identify, interpret and implement the meta-principle method. For this reason, the meta-principle method deserves particular study to help Indigenous communities appreciate the different ways to implement it.

Through these two articles, my aim is to make a modest contribution to the ground-breaking writing on Indigenous law revitalization that has happening for the past decade. (4) Referred to as the "Indigenous law renaissance" (5), Indigenous law scholars have been writing about the various resources, methods and frameworks to support Indigenous nations and communities in drawing out their laws. (6) This includes describing ways to find law in Indigenous stories, ceremonies, songs, the knowledge and experience of elders and other community members, the land and more. (7) While there has been some writing to-date from scholars in this field on the use of language to reveal Indigenous laws, (8) there is room for more. My articles seek to add to the analytical tools and examples available to Indigenous communities in using their languages to both draw out and implement their laws.

This paper is in two parts. In Part 1, I unpack six different examples of the implementation of the meta-principle method, each varying to some degree from the other. The variations are based on who identifies and interprets the meta-principle and how (e.g., what informs their identification and interpretation). In Part 2, I classify the examples into four categories of approaches to identify, interpret and implement meta-principles: (1) inherent knowledge of decision-maker; (2) in-court evidence; (3) official ratification; and (4) advisory bodies. I also discuss benefits and challenges of each implementation approach. This is intended to give Indigenous communities and governments an informed picture of what some of their options for Indigenous law implementation may include in relation to the meta-principle method. The implementation approaches discussed also shed light on opportunities and challenges in Indigenous law implementation more generally, both within Indigenous communities as well as within the Canadian legal system.

Part 1: Six Examples of Meta-Principle Implementation

Here I review six examples of implementation of the meta-principle linguistic approach. One is from a tribal court in the United States, and the rest are from Canada. Of the Canadian examples, one is from the territorial court in Nunavut, another from the government of Nunavut, another from the government of Nova Scotia, and the remaining two are from Indigenous governments. As noted earlier, each example varies to some extent from the others in terms of who identified and/or interpreted the meta-principle, and what informed their choices. To assist in navigating these variances, I provide the following summary table of the examples:

Examples Who identified Who interprets What is the the principle? the principle? interpretation based on? Navajo Nation Tribal judges Tribal judges Inherent v Rodriguez fluent in fluent in knowledge (Navajo language language Nation-US) R. v NU judges NU judges Inherent Itturiligaq + knowledge * Held (NU) to be in error by Court of Appeal-- evidence or advice from Inuit on meaning of Inuit Qaujimajatuqangit to community needed Wildlife Act GN government, NU government Definition + (NU) based on and public within the law; significant servants (NU descriptions Inuit judges) within engagement over government Inuit Qaujima- documents and jatuqangit, statements; and including Advisory panels identification and description of principles Sustainable NS Legislature NS government Definition Development * Not clear and public within the law Goals Act whether this servants (NS (NS) was with Migmaq judges) involvement Lobster Law LMG, following Listuguj law Definition (Listuguj analysis of oversight within the law; Mi'gmaq First community board (made up and The Nation (LMG), engagement of community oversight QC) members) board's knowledge and Migmaq custom 7 Cree Aseniwuche Members and Analysis of Principles Elders Council employees of interviews; and (Aseniwuche and leadership AWN government Handouts with Winewak Nation identified. summary of (AWN), AB) Elaboration analysis based on community interviews and synthesis, followed by adoption by AWN. 1. Navajo Nation v Rodriguez (Navajo Nation--US)

This example comes from US Anishinaabe tribal judge, Matthew Fletcher, one of the first Indigenous law scholars to focus on the use of Indigenous languages to draw out Indigenous law. Fletcher relied on philosopher H.L.A. Hart's theory of primary and secondary rules to explain the meta-principle method. (9) Hart conceived of "primary rules of obligation" as non-optional duties or obligations that are part of a group's customs or traditions. (10) Secondary rules are rules of "recognition", which Hart explained as procedural rules for deciding such things as when and how rules can be passed, when a rule has been broken, and how disputes will be adjudicated. (11) Using the case Navajo Nation v Rodriguez from the Navajo Nation Supreme Court in 2004 (12) as his main example, Fletcher proposed that a tribal court judge would identify "an important and fundamental value signified by a word or phrase in the tribal language" (e.g., a primary rule), and next apply that value to an Anglo-American or intertribal secondary rule in order to "harmonize these outside rules to the tribe's customs and traditions." (13)

The issue before the tribal judge in Navajo Nation v Rodriguez was whether the Navajo's Bill of Rights required the tribe's police force to inform suspects taken into custody of their right to remain silent and right to a lawyer (in the United States this is called a "Miranda warning"). The Bill of Rights protected suspects from being "compelled ... to be a witness against themselves", but the question was whether this extended to Miranda-type protections. To resolve this question, the tribal judge, who was from the nation and spoke the language, drew upon the Navajo concept of Hazho'ogo, which the judge described as a fundamental tenet of how the Navajo approach each other as individuals and relatives, serving as a reminder that patience and respect are due to all. (14) Based on this principle, the judge held that tribal police had an obligation pursuant to Hazho'ogo to give suspects the equivalent of Miranda warnings.

Fletcher praised this case as a practical method for introducing "customary law into the modern era" in an incremental way and "without creating much additional confusion as to the application of the law." (15) The identity of the tribal judge as a member of the nation and a fluent speaker of the language is suggested by Fletcher to be important factors to the success of this approach, particularly language fluency, which Fletcher acknowledges is rare even among tribal judges. However, Fletcher also suggests that a tribal judge who is a member of a nation, but not a fluent speaker, could also apply primary rules. (16)

2. R v Itturiligaq + (NU)

   The application of the meta-principle approach is starting to be seen in a growing number of cases from Nunavut. By way of context, it is...