Acknowledging Indigenous Laws and Legal Orders
Indigenous laws and legal orders are the first original laws of the land we now call “Canada” and have been in existence since time immemorial. However, the imposition of western colonial law(s), legal systems and policies upon Indigenous Peoples and Nations has had significant impact upon our ability to govern, maintain peace and social order within Indigenous societies. Indigenous governance structures are based in ceremonial lodges and spiritual laws stemming from the connection Indigenous Peoples have with the land. The banning of ceremonies under early Canadian legislation such as the 1884 Indian Act interrupted the transmission of Indigenous laws and legal orders to people within Indigenous Nations. This disruption of Indigenous governance structures can be seen in the inter-generational traumas of addictions, mental health and health issues that Indigenous peoples are encountering in their communities, in their over-representation in the criminal justice system and in the high percentage of Indigenous children in care.
There is more research and work to be done in this area, especially if the goal is to reduce the number of Indigenous people who come into contact with the criminal justice system and reducing the number of Indigenous children in care in the child welfare system. Discourse on Indigenous legal orders are beginning to make their way into law schools, law practice(s) and the courts, which is helpful in facilitating discussion on a meaningful Nation to Nation relationship. It should be pointed out that Indigenous laws and legal orders are separate and distinct from common and civil law traditions that are taught in university law schools. I would even go so far as to say that Indigenous law is distinguishable from “Aboriginal Law” which is the source of law derived through the courts’ interpretation of colonial legal instruments under common and civil law such as The Royal Proclamation of 1763, the British North American Act and the Canadian Constitution as they relate to “Aboriginal” people.
The governance of Onion Lake Cree Nation is unique, as all important Chief and Council decisions impacting their community are vetted through their Elders Council. Towards the end of my legal studies, the concept of ‘Indigenous laws and legal orders’ started to gain traction within the law school and legal practice environment. Fortunately, this discourse on Indigenous legal orders is beginning to make its way into more law schools, law practices and the courts, which gives the discussion about ‘alternative’ Indigenous processes more consideration. The release of the Truth and Reconciliation Commission’s Calls to Action in 2015, alongside the Canadian government’s endorsement of the United Nations Declaration on the Rights of Indigenous Peoples in 2016 have provided the necessary momentum to begin thinking outside the constitutional legal box to resolve issues in Indigenous communities.
Working From a Place of Treaty and Nehiyaw (Cree) Governance
This idea arose because of concerns about the high numbers of Onion Lake members and children coming into contact with the court system, either through criminal charges or child welfare related situations. From 2013 to 2015, I had the privilege of working in the Treaty Governance Office in Onion Lake Cree Nation (Treaty No. 6) as a researcher/ advisor. Onion Lake is a large Cree community in Saskatchewan with very strong ties to their language, traditions, customs and ceremonies. It was during this time that I became exposed to a completely different understanding of Treaty and “law” through the perspective of nehiyaw (Cree) ways of knowing, being and living. The governance of Onion Lake Cree Nation is unique, as all important Chief and Council decisions impacting their community are vetted through their Elders Council. Central to all decisions made by the Elders Council is the importance of following manitow wiyinikwina (Creator’s laws), nehiyaw wiyasiwewina (human laws), nehiyaw (laws in songs, ceremonies and sacred sites) and working from a place of understanding wahkohtowin (kindship relations/ obligations). In most of the meetings with the Elders Council, I was one of the few people who did not speak or understand the Cree language; all of their meetings were conducted entirely in Cree, with a translator available to translate for non-Cree speakers in attendance. It was in these meetings conducted entirely in Cree that I began to learn and realize an Indigenous perspective of Treaty that is not learned in public schools and not understood by the general Canadian public. The Elders would often recite stories, teachings and events passed on to them from their parents, grandparents or great grandparents in great detail. In these moments I realized the oral understanding of Treaty was alive but not being transmitted to more Indigenous and non-Indigenous people to assist in better cross-cultural understandings.
Creating an Indigenous Jurisdictional Dispute Process
This Cree jurisdictional process discussion was initiated by the Elders as they shared their deep concern for families being torn apart and the impact this had upon the functioning of the community.This ‘jurisdictional’ discussion goes back to treaty making and promises made to Indigenous peoples by the Crown while entering into and finalizing treaty negotiations. It was understood that Indigenous Peoples would always be able to practice and exercise our laws, way of life and customs with no intrusion from the Crown governments. This is not what happened after the making of Treaty No. 6, as the Indian Act was created at the same time as treaties were being made. This legal/ jurisdictional quagmire has been in existence since the making of Treaty No. 6 and this is why many Indigenous Peoples argue that treaties are unfinished business. In an effort to fill this jurisdictional gap with an Indigenous law making and governing process, Onion Lake Cree Nation began the preliminary research and work in this area.
Indigenous law is distinguishable from “Aboriginal Law, which is the source of law derived through the courts’ interpretation of colonial legal instruments under common and civil law such as The Royal Proclamation of 1763, the British North American Act and the Canadian Constitution..One of the projects the Onion Lake Treaty Governance Office began work on was establishing a Cree jurisdictional dispute resolution process. The idea arose after concerns arose about the high numbers of Onion Lake members and children coming into contact with the court system, either through criminal charges or child welfare related situations. We were consistently reminded that there exists an Indigenous jurisdiction that needed to be occupied with Cree laws, processes and ways of resolving disputes.
Revitalizing and Privileging Indigenous Law is Key to Healing Families and Communities
This Cree jurisdictional process discussion was initiated by the Elders as they shared their deep concern for families being torn apart and the impact this had upon the functioning of the community. The Elders consistently articulated the need to return to Cree ways of resolving disputes rather than always going through the court process. Returning to practicing Cree laws and dispute resolution processes would begin to restore balance back to the community. The discussion to create this Cree jurisdictional dispute process continues and for it to become a reality requires funding, resources and support from different groups. There is more research and work to be done in this area, especially if the goal is to reduce the number of Indigenous people who come into contact with the criminal justice system and reducing the number of Indigenous children in care in the child welfare system. Indigenous knowledge revitalization through privileging Cree laws and governance is pivotal in bringing healing and balance to Indigenous peoples, families and communities.
About Janice Makokis
