The Hard Work of (Indigenous) Law

I spent all of last week thinking hard about law. Given that I am a geeky lawyer, this is not surprising. But there was one crucial and exciting difference about this kind of work: Canadian law, for once, was not occupying centre stage.

Prince Rupert is a small city on the North Pacific coast, a Canadian settlement in the heart of Ts’mysen(Tsmishian) territory. All the ‘usual’ institutions of law are here: the RCMP on patrol in big trucks and blue uniforms (a buffalo’s head stares out from their badges), the brick courthouse sheltering old books and tired arguments, the government buildings stocked with policies shipped out from Victoria or Ottawa. This is the law that most of us are used to encountering, as friends, functionaries, or foes. This is the law that, with its wealth, power, and authority as ‘ours’, shapes lives and creates towns, provinces, a country. And this is the same law that, through the Indian Act and related legislation, has long defined virtually everything it means to be Indian in Canada.

But not Ts’mysen. Not Haida. Not Cree, nor Gitxsan, not Gwich’in nor Anishinaabeg. Every nation has laws, self-made guides for living well and resolving problems, but indigenous laws have been degraded, dismissed, and disrespected by the colonial-Canadian state since it first presumed to know and control the territories over which its flags still fly today. Canadian law, as well-intentioned as it might be (and it often simply isn’t), remains marked by an arrogant unwillingness to accept that it is not the best, or, indeed, only source of cohesion and control in the lives of its subjects.

I gathered with members of these nations, hereditary Chiefs and Matriarchs, academics and fishery workers, elders and young people, in a beautiful log-timbered Ts’mysen space, but not to work on, or

even against, Canadian law. We were in Prince Rupert for a three-day workshop entitled “Revitalizing Indigenous Law and Changing the Lawscape of Canada”, organized by the Indigenous Law Research Unit at the University of Victoria. Under the guidance of legal scholars Val Napoleon and Hadley Friedland, we studied, synthesized, and practiced applying Ts’mysen and Gitxsan legal principles, as expressed in the oral histories and teachings that have been maintained by clans and elders, codified in crests and totems, and, lately, translated into texts and court transcripts. Such laws, we learned (if we didn’t already know), really worked to repair conflict, to compensate for loss, and to regulate relations within and between clans, house groups, and whole nations. Such laws did not, as Canadian laws do, depend on a rigid and linear hierarchy of written codes and enforcement institutions, but they did have real force and authority to do the hard, necessary work that all law is called upon to do. There is an unacceptable, harmful deficit apparent in the lives of many indigenous people and nations in this country. Traditional legal orders have broken down, and Canadian laws are incapable of taking their place – they are, in various implicit and explicit ways, often rejected by the nations they seek to define and regulate.

One of the ongoing harms that the Canadian State (and society in general) inflicts upon indigenous nations is that of categorization – lumping diverse nations, with different cultures, languages, laws, and ambitions, into a limited number of ‘boxes’ defined and regulated by Canadian law. Euro-Canadian convenience, stereotypes, and assumptions of superiority have allowed this to happen for centuries, but such boxes only hide the true stories of this country’s – and its many nations’ – past, present, and possible futures.

Over the three days of this workshop, I began to see more clearly the pillars upon which all effective legal orders must be built. Basically, they must make sense to the people they govern. They must offer sensible processes and guideposts to dealing with the problems of life. And they must, in a healthy society, allow everyone the space and assistance to be their best selves, both as individuals and as members of a greater whole.

Another thing – everyone’s laws and legal histories can seem strange, if viewed with the eyes of strangers. Over the days of learning about Ts’mysen, Haida, Gitxsan and Cree law, I encountered some

startling moments of seeing Canadian law as an outsider might. We too use odd emblems (including mythical beasts!), protect cherished symbols (remind me not to wear my fake military uniform in
public), and harness the seeming magic of taking oaths on books and standing when people wearing certain robes enter certain rooms. Suddenly, the reality of transmitting law in stories and transcribing it in totem poles ad name-holders did not seem so far-fetched. In fact, I realized, such living laws did, and do, make far more sense in this land, to these people, than anything Canada has cooked up in its stone houses. Although accepting the reality of multiple legal orders in one country may sound like a recipe for bureaucratic chaos or disaster, this needn’t be the case. As Canadians, we already have some practice working together across our distances and differences – we, as one country, already embrace a vast number of geographic legal jurisdictions (think federal, provincial, and municipal law), as well as several established legal communities: common law, civil law, and military law, to name three. With diligence and dedication, we can, and must, do even better to ensure that members of Canada’s indigenous nations regain and strengthen the sense of legal belonging that is so crucial collective well-being. If Canada is ever really going to realize its potential to be a post-colonial country, it must begin to recognize, respect, and work in reciprocal ways to integrate the indigenous laws that, like the amazingly resilient indigenous nations that sustain them, never died, never accepted defeat, and never will.