Reconciliation? Indigenous law as law: Hadley Louise Friedland, Reclaiming the Language of Law: The Contemporary Articulation and Application of Cree Legal Principles in Canada, PhD Dissertation, University of Alberta, 2016
Abstract: The Truth and Reconciliation Commission of Canada states the revitalization and application of Indigenous laws is vital for re‐establishing respectful relations in Canada. It is also vital for restoring and maintaining safety, peace and order in Indigenous communities. This thesis explores how to accomplish this objective. It examines current challenges, resources and opportunities for recovering, learning and practicing Indigenous laws. It develops a highly structured methodology for serious and sustained engagement with Indigenous legal traditions, based on reviewing existing methods, then combining the methods of two leading Indigenous legal scholars, John Borrows and Val Napoleon. This method approaches Indigenous stories as jurisprudence. It uses adapted legal analysis and synthesis to identify Indigenous legal principles from stories and oral histories and organize these principles into a rigorous and transparent analytical framework. These legal principles can then be readily accessed, understood and applied. This thesis demonstrates this adapted legal analysis method is teachable, transferable and replicable, using research outcomes of Cree legal principles responding to violence, harms and conflicts. Through the example of a foundational Cree legal principle, “wah-ko-to-win” (our inter-relatedness), it demonstrates how this method can also deepen our understanding of background or ‘meta-principles’ within Indigenous legal traditions, which can help us interpret, apply and change laws in legitimate ways. It then demonstrates how the research outcomes from this method may be understood and applied by Indigenous communities, through a case study exploring the development of a contemporary Cree criminal justice process based on Cree legal principles, by and with the Aseniwuche Winewak. Finally, it examines the current narratives about the appalling rates of violence against and over‐incarceration of Indigenous people in Canada and the existing gap between legitimacy and enforcement. It proposes Indigenous legal reasoning as a bridge, and develops the conceit of the “reasonable Cree person” to examine whether principled Cree legal reasoning can be explicitly recognized and implemented within Canada’s current political and legal systems. It concludes that, while there are many potential spaces for doing so, more intellectual work is necessary first, in which both Indigenous and non-Indigenous people engage with Indigenous laws as laws. It is this kind of deep engagement that is necessary to effectively and respectfully operationalize the Truth and Reconciliation Commission’s compelling calls for greater recognition of Indigenous laws in Canada.
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