Plenary Session #2Professor Kirsten Anker

Ohén:ton Karihwatéh kwen (the words that come before all else)

Indigenous law? Aboriginal legal orders? First Nations jurisprudence? Chthonic legal tradition?

Lecture Themes

1. Status of indigenous law in Canada

2. The method question

3. The justice question

4. Two specific legal traditions

John Borrows

FN law is a fact of life that has persisted Canadian law on Aboriginal peoples evolved

from “inter-societal” law FN law forms part of the family of legal

traditions in Canada, can be a more general resource

FN legal sources can be translated to be accessible to outsiders

Absence of Law?

Maurile de Saint-Michel 1652: “Ils n'ont ni foi, ni loi, ni roi.”

Hobbes 1660: “During the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.”

Locke 1690: “Thus in the beginning all the world was America.”

De Vattel 1758: “Their uncertain occupation of these vast regions cannot be held as real and lawful possession.”

Hudson Bay Co Charter 1670

And further We do by these Presents for Us, our Heirs and Successors, make, create and constitute the said Governor and Company for the time being, and their Successors, the true and absolute Lords and Proprietors of the same Territory, limits and places, and all the other Premises.

Recognition, non-Recognition and Prohibition of Aboriginal Law

Trade Treaties Royal Proclamation Marriage and adoption Indian Act prohibitions Aboriginal title and rights Sentencing Civil damages Questions of subjective state of mind

James Sakej Henderson(Director, Native Law Centre, University of Saskatchewan)

“Comprehending First Nations Jurisprudence”Paper presented at University of Toronto

January 26, 2007(http://mediacast.ic.utoronto.ca/20070127-IndLaw2-3/index.htm#)

Investigating Indigenous jurisprudence:• What?• Who?• How?

Hoebbel and Llewellyn

How to investigate Cheyenne law? The ideological path – rules, ideal patterns,

right ways The descriptive path – actual patterns of

behaviour The trouble case – the view that prevails

when things go wrong, what is imperative and not just proper

James Sakej Henderson

“On our terms” Law as a dream (vs ideology, description or

trouble) Protocol dilemma relating to ceremonies No instinct for being universal, no

privileged position on the law The “flux” or implicate order The opera analogy

Functional/Structural Approach Llewellyn & Hoebel, The Cheyenne Way (a) The killing of a Cheyenne by another Cheyenne is a sin

which bloodies the Sacred Arrows and endangers the people; it is a crime against the peace and the people, and normally within the exclusive jurisdiction of the tribal authorities.  

(b) The rule that the kin of the victim of a killing are privileged to seek self-redress in their own right, or to retaliate, is no longer law. However, the authorities are directed to take due account of the natural feelings of the victim's kin.  

(c) It is the expected duty of every citizen, and especially of the military societies, to intervene in disputes before they reach the stage of killing.

Functional/Structural Approach

Casimel v Insurance Co of BC (1993)– Grandparents were effectively parents under customary adoption

Delgamuukw v BC (1997)– Proving “organized society”

R v Gladstone (1996)– Intertribal trade characterized as “commercial” right

R v Marshall; R v Bernard (2005)– Translating use of land into “exclusive occupation”

Neowarra v Western Australia (2003)– Existence of rules (on “right way” marriage) demonstrated by

conforming behaviour and disapproval of breach

Interpretive Approach

Clifford Geertz – haqq, adat, dharma Start with provisional term in indigenous language Unravel cognate terms to get “legal sensibility” Reflect back on assumed grounds of your legal

sensibility James Clifford & others Ethnography is the production of a cultural text or object Translations actively negotiated by specific, located

persons In a given research context (often colonial)

Poetic translation…

Invisible translator– “Hanging above the hall they chant their song

of hate”– Lattimore’s translation of Agamemnon

The mark of the foreign– “They hymn their hymn – within the house

close sitting – the first beginning curse”– Browning’s translation of Agamemnon

My points…

Law is translation – the trickster rather than “our terms” v assimilation

Translation is an constructive activity, in a context (the sausage factory)

The mark of the foreign – centaur idiom makes space for new meaning, is transformative

Example 1: Ngurrara Canvas 1997

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Song lines…

The Aranda “skin” system

Title Deed 16th Century

Example 2: Creating a right of superficies in Eeyou Istchee

Traplines and tallymen The story… Translating in the context of the Adapted

Forestry Regime in Eeyou Istchee