I take it as an inarguable premise that all settlers have a responsibility to learn Indigenous systems of law. That Indigenous law legitimizes our presence on this land is a stance beyond argument within a reconciliation frame. To argue against this is to argue for colonialism. While the responsibility to learn is a responsibility held by all, here, I am speaking particularly to other settler lawyers, you who share my chosen work. And I want to tell you: we are uniquely poised to mess this up for everyone.
Unlike students entering law school to learn the law, you and I have been in practice for a while. We may not be able to define the concept “law” immediately, but we would try, if pressed. We can easily identify sources of law, bluff legal theory, or reference constitutional legal principles. We know law’s creative possibilities and its limits. We know law.
This education and experience hinder our learning of Indigenous systems of law. Instead of being advantaged when we come to learn Indigenous systems of law, we are primed to make at least two critical mistakes. I’ve made more. But this is an opinion piece, not a book.
In law school, I was writing a paper about land claims over sacred spaces. I went to Bebahmoytung, an Elder, and asked for a (pan-) Indigenous definition of the word “sacred.” He was welcoming and confusing; instead of a definition, he offered an invitation to a sweat lodge. I went, expecting the explanation would be provided at the lodge, but to my ears, it didn’t come. And repeating my question just led to further invitations-as-answers. After another lodge and another lodge, I began to grasp the concept demonstrated, self-congratulation ensued, and I finished my paper.
But then, later, I decided to write a paper about intellectual property rights applied to traditional knowledge. So, I returned to Bebahmoytung and asked for a (pan-) Indigenous definition of “traditional knowledge.” This time he had a story. He started by saying that to understand traditional knowledge, one must appreciate the manner of transmission:
“Let’s use another example. Pretend you came to me, and asked me to teach you karate,” he said.
"Okay," I said.
“I would start by telling you to paint my fence. And you would paint my fence, and your arm would make a motion like this: up and down, up and down,” he demonstrated.
“Alright…” I said.
"When you were done, I would tell you to wax my car,” he continued.
"Dennis?” I attempted interruption.
“And you would wax my car, and your arm would make a motion like this.” He ignored me, waving his arm in an arc.
"Are you telling me the plot of The Karate Kid?” I asked.
"Yes, I am.”
I retell the plot of The Karate Kid to demonstrate the first mistake: You will probably ask the wrong questions. I eventually realized that definition was a Western epistemological method and sought to decolonize how I learned.
Later, as a lawyer in Treaty 9 territory in Ontario, I heard stories of oppression by the Canadian justice system and about a desire to “return to our own law.” Uninformed but interested, I asked for details. On my behest, “tell me about your legal system?” one man told me an anecdote about a ladder. Another related something his grandma said about a plant. I nodded through these stories, waiting to return to the topic of law. Then, I picked up John Borrows’ book, Drawing Out Law, and learned that these conversations were entirely about law:
I hope that readers will see that Anishnawbek legal traditions are drawn from places other than courts, legislatures, lawyers’ briefs, or law professors’ lectures. Indigenous laws can be revealed in broader ways. They are nourished by a grandparent’s teachings, a law professor’s reflections, an animal’s behaviour, an engraved image, and a landscape’s contours…
This was jarring. I was a practising lawyer — actually, their lawyer — asking a simple question about law and insensible to the answer. I’ve since learned that Indigenous legal systems not only stem from different sources, but from an entirely different concept of law. Understanding Indigenous systems of law means leaving behind assumptions about what law is, or how it should look. This is as crucial as it is difficult. As Mary Ellen Turpel wrote, “the conceptions of law are simply incommensurable.”
So, not only will you probably ask the wrong questions, you will most likely listen for the wrong answers. And if you carry your method of learning and your concept of law into the conversation, what you will get back will be apparent non sequiturs you will dismiss as not-law, or a piece of information you will inevitably pervert by plugging it into your own familiar western legal system.
Both results extinguish Indigenous systems of law and re-entrench colonialism. The former, clearly so, as it obliterates a complicated, rich legal system which, as I repeat, legitimizes our presence here, but also, presents an alternative that centres harmony, interdependence, and land in ways that our climate-change facing communities could find life-saving.
The latter move, though, taking settler-cognizable aspects of Indigenous law and bringing them into the Canadian legal framework can seem laudable but is as destructive. Consider the practice of swearing on a feather rather than a bible, or a sentencing circle gathered to remedy an infringement of the Criminal Code. Both are examples of asking, “what is your version of our law?” and neither ask, “what is law in your community?”
Though all are responsible for learning Indigenous law, of course, we look to lawyers, who are going to lead the way. So how do we avoid guiding others in the wrong direction?
Accept that the concept of law you know is just one concept of law, and that the system of law that flows from it is conditioned by cultural values that are not universal. Make efforts to deeply learn Indigenous cultures: their values and views on a good life, as Indigenous law can only be understood from within its cultural commitments. Understand that this condition is not unique to Indigenous legal traditions, but applies across all legal traditions. As Aaron Mills wrote, “[e]very system of law – Indigenous or not – has a home.” Therefore, also learn about the cultural roots of Canadian law, our values and views on a good life, as this will aid in understanding the conflict that arises when our two legal systems meet. And then read the wealth of Indigenous legal scholarship existing and emerging, but question the author’s stance: is this a study of an Indigenous legal system rooted in a Canadian concept of law? Finally, enjoy and trust the journey. It leads to an incredible place of truth and reconciliation.