Reflective Frameworks: Methods for Accessing, Understanding, and Applying Indigenous Laws

tags: LAW 397 Indigenous Legal Theories

Notes

How might legal scholarship assist with the practical tasks of finding, understanding and applying Indigenous laws today?

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(1) the linguistic method; (2) the sources of law method; (3) the single-case analysis method; and (4) the multi-case analysis and legal theory method.

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adapted method of legal analysis and synthesis, as currently taught in common-law law schools.

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outside those communities, these traditions are largely invisible or even incomprehensible.

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or illegible?

many of the vexing institutional and intellectual questions often posed as barriers to the greater recognition and integration of Indigenous legal traditions within Canada’s legal system, such as jurisdiction and harmonization,” have been answered satisfactorily enough in the American context.

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dis- juncture exists between the written laws adopted and applied in tribal courts, which remain largely Anglo-American in origin, and “traditional” or Indig- enous laws

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I will also not be addressing the question of whether legal scholars should work towards increasing the accessibility and intelligibility of Indigenous laws.

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Should read the footnotes here, because I think I might not agree that this a good idea. Kind of a colonial project in itself - is there a sustained Canadian effort to understand Russian law? American? Spanish? No, we just acknowledge their jurisdiction and leave them alone. I think there's an assumption here that Indigenous law can and should be subsumed into the Canadian legal system, where conflicts will inevitably be resolved in favour of colonial ways of thinking.

Indigenous people suggest law can be found in dreams, dances, art, the land and nature, and in how people live their lives.

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can be found by who? by the Indigenous people themselves, sure, but by settlers? I can't read these signs and probably won't ever be able to

where litigants make representations regarding In- digenous law without citing authority, this guidance may not prove helpful at all—or may even become dangerous if a judge creates precedent based on faulty guesswork.?

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law is encoded right into the language—and the stories generated from the language

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translations to English may miss “fundamental fine distinctions, subtle nuances, and even correct meaning.”

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legitimacy of the representations made by … community ‘experts.”” Not only might “reasonable minds differ” but there also might exist “fundamental differences on family or political lines”

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cf Kwakwaka'wakw Laws and Perspectives Regarding Property and the question of whether outsiders are truly more objective

the legitimacy of a tribal court opinion declaring customary law based on the findings of an academic would be in serious doubt

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separated roughly into three cat- egories based on their general availability: (1) resources that require deep knowledge and full cultural immersion; (2) resources that require some com- munity connection; and (3) resources that are publically available.

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generally, the most ideal resources are likely the least available at this time, while the least ideal resources are the most available.

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“pressing concerns” regarding the intelligibil- ity, accessibility, equality, applicability and legitimacy of Indigenous legal traditions

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too vague or imprecise to constitute intelligible legal prescriptions for conduct. He points out that there is “nothing inherently unintelligible within Indigenous laws” but acknowledges that “there may be a need to articulate, translate or reinterpret some of them in particular instances.”

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Indigenous laws are “not readily available” and are difficult to understand.*

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legitimacy must be grounded in reason.

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"must"?

contemporary demand for explicit reasoning behind laws is another important consideration

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“fundamentalist versions” of Indigenous legal tradi- tions

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Challenges of accessibility: This category speaks to the reality that Indigenous laws are typically not readily available,

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Challenges of intelligibility: Some Indigenous laws may appear too vague or too imprecise to serve as standards for conduct.

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Challenges of legitimacy:

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change is legitimate,

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Challenges of distorting stereotypes:

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Challenges of relevance and utility

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“linguistic method,”

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identify an important and funda- mental value identified by a word or phrase in the tribal language”

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harmonize these outside rules to the tribe’s customs and traditions.

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Navaho court applied the tribal principle of hazho ‘ogo (a fundamental tenet about treating other humans with patience and respect)” to expand the procedural prohibitions around self-incrimination in criminal cases

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serious interpretative conflicts can emerge concerning a single word, particularly one that signi- fies a fundamental legal principle in a society.

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Fletcher suggests no real way of grappling with conflicting interpretations

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risks of rigidity, essentialism and fundamentalism

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varied sources of Indigenous laws, including (1) sacred, (2) natural, (3) deliberative, (4) posi- tivistic and (5) customary law.

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“the proximate source of most Indigenous law” is deliberation.

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“When Indigenous people have to persuade one another within their traditions, they must do so by reference to the entire body of knowledge to which they have access,

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closely analyzing individual Anishinabek stories to draw out legal principles,

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Fletcher criticizes and actually rejects this method, which he views as a varia- tion of the case method, because he sees the interpretation of principles from specific stories as an essentially boundless endeavour,

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if deliberation, interpretation and persuasion are at the heart of a legal tradition, and if these principles are to be applied with concrete consequences, there must be ways for others to le- gitimately confirm or challenge his interpretations and their relevance.

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Napoleon locates principles from specific cases in a comprehensive whole, while also ensuring that her articulation of that comprehensive whole avoids “romanticism and rhetoric”'

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Napoleon’s work appears to answer Fletcher’s criticism of boundless- ness, as well as his concern about the case method more generally,!’* partially because she develops a larger theoretical framework, which arguably sets up interpretative limits, but also because she analyzes a number of Gitksan stories and cases

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broader grounding is necessary, one that requires all legal scholars to reflexively con- sider and act on their ongoing responsibilities, including the limits of their scholarly role, within the communities of interpretation and practice they are engaging with.

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