Thinking about Indigenous Legal Orders
| Autor | Val Napoleón |
| Cargo | Lawyer and Ph.D. at University of Victoria, Canada |
| Páginas | 137-146 |
137
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Thinking about Indigenous Legal Orders*
Val Napoleon**
Abstract:
Rethinking Indigenous legal traditions is fundamentally about rebuilding citizenship. The
theory underlying this paper is that it is possible to develop a exible, overall legal framework
that Indigenous peoples might use to express and describe their legal orders and laws, so
that they can be applied to present-day problems. This framework must be able to, rst,
reect the legal orders and laws of decentralized (i.e., non-state) Indigenous peoples, and
second, allow for the diverse way that each society’s culture is reected in their legal orders
and laws. In turn, this framework will allow each society to draw on a deeper understanding
of how their own legal traditions might be used to resolve contemporary conicts, complex
social injustices, and human rights violations.
The Canadian state is not going away and the past cannot be undone. This means that
Indigenous peoples must gure out how to reconcile former decentralized legal orders and
law with a centralized state and legal system. Any process of reconciliation must include
political deliberation on the part of an informed and involved Indigenous citizenry. We have
to answer the question, «Who are we beyond colonialism?»
Keywords:
Indigenous juridical order – Legal traditions – Legal system – Indigenous people – Indigenous
law – Decentralized law
Content:
1. Introduction – 2. Locating myself – 3. Seeing Indigenous Law – 4. Where is Indigenous Law
recorded? – 5. Territory – How far does the Legal Order go? – 6. Gender and power
Indigenous law can be hard to see when we are used to seeing law as something the Canadian
government or police make or do. Some people may even have been taught that Indigenous
people did not have law before white people came here. This is a lie. Law can be found in how
groups deal with safety, how they make decisions and solve problems together, and what we
expect people «should» do in certain situations (their obligations). (...) They are often practiced
and passed down through individuals, families, and ceremonies. This is why many still survive,
after all the government’s eorts to stop them and sneer at them. Because of the presence
of Canadian law, and the lies and eorts to stop Indigenous law, some Indigenous laws are
sleeping. It is time to awaken them.1
* This article has been revised from the original version, which was written for the National Centre for First Nations Governance and
published in 2007 online at http://fngovernance.org. The ideas contained herein article have been reworked and substantially
developed in Val Napoleon, Ayook: Gitksan Legal Order, Law, and Legal Theory (Ph.D. 2009 Dissertation, unpublished). This dissertation
is available online at http://dspace.library.uvic.ca.
** Lawyer and Ph.D. at University of Victoria, Canada. Associate Professor of Aboriginal Justice and Governance of the same university.
Until 2011, she was an associate Professor at the University of Alberta, Canada. Prominent activist for the rights of Indigenous Peoples
or First Nations (First Nations) in Canada.
1 Hadley Friedland, The Wetiko (Windigo) Legal Principles: Responding to Harmful People in Cree, Anishinabek and Saulteaux Societies
– Past, Present and Future Uses, with a Focus on Contemporary Violence and Child Victimization Concerns. University of Alberta LLM
Thesis, 2009 [unpublished] 15-16 [Friedland].
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