Indigenous Legal Theories

Question 1

Sources of indigenous law

Answer 1

• sacred teachings, naturalistic observations, positivistic proclamations, deliberative practices, and local and national customs
  1. Sacred Law:
• Laws can be regarded as sacred if they stem from the Creator, creation stories or revered ancient teachings that have withstood the test of time. When laws exist within these categories they are often given the highest respect
• Creation stories are one source of sacred law in Indigenous traditions. Contains rules and norms that give guidance about how to live with the world and overcome conflict

2. Natural Law:
   - This approach to legal interpretation attempts to develop rules for regulation and conflict resolution from a study of the world’s behavior.
   - Indigenous peoples who practice this form of the law might watch how a plant interacts with an insect, and draw legal principles from that experience. Others may study how an insect interrelates with a bird, and take legal guidance from that encounter.
3. Deliberative Law:
   - An especially broad source of Indigenous legal tradition is formed through processes of persuasion, deliberation, council, and discussion.
   - While sacred and natural law might sometimes form the backdrop against which debate occurs, the proximate source of most Indigenous law is developed through people talking with one another
   - Circles are considered sacred and represent the bringing together of people in an atmosphere of equality, as they do not raise one person above another
4. Positivistic Law: Another source of Indigenous law can be found in the proclamations, rules, regulations, codes, teachings, and axioms that are regarded as binding or regulating people’s behavior
   - Legal traditions in this mode have weight because proclamations are made by a person or group regarded by a sufficient number of people within a community as authoritative
   - Individuals who are seen to possess such power may be hereditary chiefs, clan mothers, headmen, sachems, or band leaders.
5. Customary Law:
   - Customs as a form of law (ex. Common law marriage)
   - Customary law can be defined as those practices developed through repetitive patterns of social interaction that are accepted as binding on those who participate in them
   - often inductive, meaning that observations of specific behavior often lead to general conclusions about how to act; as a result, the obligations they produce are regularly implied from a society’s surrounding context

Question 2

Oral traditions/oral law/narrative/story

Answer 2

• Indigenous law focuses on legal traditions, customs and practices rooted in Indigenous lifeworlds
• Indigenous law is oral traditions passed down through generations
• Colonial law recognizes written down law codes, therefore, don’t accept Indigenous law as legitimate because it is oral
• Indigenous groups resist colonial law through: “within the story”- uses legal apparatus to resist colonialism-legitimate right to citizenship and “story meet story”-indigenous narratives make resistance possible because stories carry meaning and can change narrative to produce another meaning to resist colonial las because it is not written down

Question 3

Sovereignty Model

Answer 3

• justifies state violence - sovereign has legitimacy in using force
• supreme authority within a territory
• relies on the web of meaning- a normative framework

Question 4

Cosmology

Answer 4

• cosmology provides a framework through which we “can come to terms with the manner in which the laws of that society and the individual’s behaviour are understood.”
• we can better understand the “principles, ideals, values and philosophies” that inform the legal tradition
• We can look to creation stories for cosmology, but much can also exist between the lines in stories—that is, much of the worldview and many of the precepts that animate and give context to these stories can also remain implicit.
• the dynamic connection between law and cosmology takes shape when we think of an Indigenous ontological understanding of land that assigns much more “agency” and “being” to the land than non-Indigenous world views
• cosmology might also reveal insights into “the constitution of authority” and notions of legitimacy within a tradition

Question 5

Relationships/relationality

Answer 5

1. Relationship can be defined as, “the way in which two or more concepts, objects, or people are connected, or the state of being connected”
   - The WSÁNEĆ tradition is decentralized and its driving impetus is to repair and maintain relationships in an encompassing way.
   - relationship between humans and the ecosystem
2. Relationality: “being connected or associated
   From the story of slemew we can draw the importance of XÁLS’ teachings and the sacredness of water. Water originates from rain and both are closely connected. There are sacredness and a ceremonial aspect to
   water because of this relationality.