YoungCAS 2018: Rebuilding Indigenous Law

‘If people nourish a story properly, it tells them useful things about life.’

- John Rain, Cree elder

Every civilisation tells stories. We tell stories to entertain, to teach, to warn. Some stories become fixed as books, films, and other media. Other stories pass from teller to listener, living on as long as they are told to a new generation.

During a one-week workshop in Oslo, a group of young, talented scholars learned how stories can be used as resources to formalise legal processes in indigenous communities. 

The scholars came to Oslo from Brazil, Italy, and Canada to participate in YoungCAS, a one-of-a-kind intensive, international research experience. The Centre for Advanced Study (CAS) launched the programme in 2017, giving postdoctoral students and other young scholars an opportunity to collaborate on a project that furthers frontline fundamental research.

Margherita Paola Poto, a postdoctoral researcher at the K.G. Jebsen Centre for the Law of the Sea at the University of Tromsø - The Arctic University of Norway (UiT), submitted one of two winning YoungCAS proposals. Her project, titled Workshop on Indigenous Law and Methodology, brought together legal scholars to look at some of the legal issues that indigenous communities face -- in particular, gender issues.

Poto, who received her Ph.D. at the University of Pavia in her native Italy, had her own story about how she ended up in Tromsø, hundreds of kilometres north of the Arctic Circle.

‘I went to Tromsø because I was looking for my north, my pole star,’ Poto said.

While Poto proposed the project and assembled the group, it was the senior academics whom she invited who provided the pedagogical foundation for the workshop. 

Val Napoleon and Rebecca Johnson, faculty members at the University of Victoria in Canada, spent the first three days of the workshop walking the other participants through how the UVic Indigenous Law Research Unit, which they lead, conducts research projects. The ILRU works with indigenous communities to rebuild and revitalise their laws after generations of discriminatory treatment.

Stories -- as well as artifacts, ceremonies, and songs, among other potential legal resources -- play an important part in that work. Through analyses, interviews, and community consultation, the ILRU synthesises legal principles and turns them into a framework that the people in that community can build on.

For each story, the ILRU researchers focus on the main human problem the story explores. From there, they break the story down into its facts, identify how the main problem was resolved, and examine the reasoning behind the resolution.

Got all that? Good. Let’s put it to the test.

Consider this story, retold by Darcy Lindberg, a former doctoral student in the UVic Faculty of Law:

The events that lead to the making of Wetaskiwin occurred during a period of intense conflict between Cree and Blackfoot peoples. As buffalo became even scarcer, Cree people had to venture further south and west, into areas where Blackfoot communities hunted the same herds. Knowing that each was near the other’s communities, both Cree and Blackfoot people sent scouts out to see where each other was. Around present day Wetaskiwin, there are low rising hills northwest of the city, this is where the Cree and Blackfoot scout approached from different directions. As the land was mostly level prairie, these hills would allow them to survey the land better. 

 

As it turns out, the Cree man and the Blackfoot man reached the top of a hill at the same time. They startled each other, but both dropped their weapons and decided to fight by hand. Their fight lasted for hours, as neither the Cree man nor Blackfoot man could overpower the other.  

 

The two men fought so long that they decided to take a break from fighting. While they broke from their fight, each reached for their pipes to smoke tobacco. While the Blackfoot man smoked his tobacco, the Cree man found his pipe to be broken in the wrestle with the other man. Seeing that the Cree man’s pipe was broken, the Blackfoot man offered his pipe for the Cree man to smoke from. The Cree man accepted this gift. After the Cree man smoked the pipe, both men realised what they had done. The Blackfoot man had offered the Cree man a sacred gift -- tobacco -- that was accepted. They understood this to be a sacred agreement.

 

Both the Cree man and Blackfoot man went back to their camps and told their leaders and the people what had happened. Both the Cree camp and Blackfoot camp interpreted the events as a sacred agreement, and later each returned to the place and made a treaty together. Since then the place is called Witisiwin (or Wetaskiwin), which can be interpreted as 'the place where we learn to live on the land together' or more commonly known as the Peace Hills.

Let’s analyse the story. First of all, it focuses on a land dispute between Cree and Blackfoot communities brought on by food scarcity. A tussle between a Cree and a Blackfoot man leads to what reads like an accidental sacred agreement. Both camps accept the agreement as the foundation for a binding treaty. Based on the interpretation of the word ‘Witisiwin/Wetaskiwin,’ we can assume that the treaty outlined how the two communities would share the land.

Moving beyond the events of the story, we can see examples of how it teaches how a conflict emerges, plays out, and is resolved. It explains how two communities responded to a crisis (i.e. a scarcity of buffalo), and the consequences of their actions.

Taking yet another step back, we can see some guiding legal obligations, rights, and principles. Among them are the benefits of helping one another in times of need, the respect for sacred agreements, and the importance of group consultation when working on a treaty.

‘It’s not simple law for simple people,’ Napoleon said in response to what she described as a common belief about indigenous law. But neither is it panacea for indigenous communities, she added. ‘We know from looking around the world that law can fail.’

One story is nowhere near enough to form a legal framework, however. In one project in which the ILRU worked with the Secwépemc (also known as the Shuswap) people in the Canadian province of British Columbia, the researchers created a final report 47,000 words long that drew from 30 stories and 10 interviews.

Napoleon and Johnson concluded the second day of their programme by reminding the other scholars that their methodology is not meant to prescribe a legal framework to the communities with which they work. They stressed that the ILRU does not work to change, codify, or replace laws, but merely to analyse and organise legal information so communities can access and apply it. 

‘It’s a structured, systematic way of working,’ Napoleon said about the ILRU’s approach. ‘You can’t just make it up. And -- it’s a framework. It’s not the be-all and end-all.’