1.4 - Indigenous Legal Traditions

Great Binding Law

When European settlers arrived in North America they found effectively functioning Indigenous communities.  These communities constructed and applied their own legal systems.  Aboriginal laws are historically oral laws, meaning that they are communicated through speech from one generation to the next.  Conflicts between the Mohawk, Cayuga, Onondaga, Seneca, Oneida, and Tuscarora peoples, necessitated that the Iroquois Confederacy record laws around the rights, duties, and responsibilities of these peoples and their leaders.  This recorded law was called the Great Binding Law, and it represented the first time that Aboriginal people in Canada codified any of their legal traditions. The scope of influence of the Great Binding Law was huge, stretching from the area of Quebec all the way to the western United States.

Indigenous Worldview

The influence of Canada’s Indigenous societies on the birth of the legal system after colonization extends far beyond the Great Binding Law.  It was also directly influenced by the legal traditions already existing within the many Indigenous nations in Canada.  Although each Indigenous group had their own history, culture, society, and legal traditions, there were some key similarities between them.

One such similarity is the worldview that Indigenous societies held (and for the most part, still hold).  A worldview is the way that someone sees the world, a philosophy of life or concept of how the world operates.  The Indigenous worldview differed from that of the arriving European colonists in a number of ways.  First, their worldview held that all living things are sacred and interconnected - each one is dependent on the others for survival.  Second, Indigenous people’s identity comes from their interconnectedness and dependence on one another.  Third, humans are part of the circle of life, and do not dominate it.  Fourth, the land is sacred and, like other aspects of the natural world, it is given by the Creator.  Fifth, there can be many truths, instead of just one; and a person’s truth is shaped by their  personal experience.  Finally, society is based on a spiritual foundation.  Although the above are not all of the characteristics of the Indigenous worldview, they represent those which most directly impact their legal traditions.

Need for Laws in Indigenous Society

Pre-contact life for Canada’s Indigenous communities was certainly much simpler than modern life; so why did they need laws?  Historic Indigenous societies needed structures to manage their lives just as much as any other developing society in history.  All communities and cultures have conflict.  This isn’t necessarily a ‘bad’ thing, but is simply reality.  Indigenous societies were no different than any other - they had conflicts.  One of the reasons for the existence of laws is that they help to manage the conflicts within a society.  The laws and legal traditions that evolved over time within Indigenous societies facilitated the management of conflicts and supported the growth and evolution of their communities.

Legal Traditions

The framework of Indigenous law prior to European contact can be summarized by considering several key Indigenous legal traditions.  The first one to consider is that Indigenous law is fundamentally based on the  worldview and beliefs of the Indigenous society. Indigenous legal structures will look different from another society’s simply on the basis that their worldview will differ from another.  Second, Indigenous law emphasizes a harmony between human and non-human relationships.  This harmony extends to the idea that humans coexist with nature, instead of dominating or having authority over nature.  The third key legal tradition is the prioritization of the collective over the individual.  Modern Western thought is completely the opposite, and prioritizes the individual over the collective.  The fourth legal tradition is related to the third one.  This is that the laws within the society are based on the values of the whole society - the best interests of all people within that society.  Fifth, an Indigenous legal framework will include laws that are non-punitive and non-confrontational.  Indigenous societies did not have prisons.  Instead, they emphasized a restorative approach to a ‘wrongdoing’ (more on this later).  This means that they were more interested in making a ‘wrong’ ‘right’, than they were in just punishing the person who did wrong.  Finally, similar to other societies, Indigenous legal traditions were continually evolving as its society evolved.  If these legal traditions summarized the legal framework of Indigenous societies, what did their law look like?

Indigenous Law

Indigenous Law evolved to maintain peace and harmony within the community.  Laws were focused on promoting values such as respect, restoration, and consensus; while also emphasizing connection to land, the Creator, and community.  Although the specifics of Indigenous law varied from community to community, there were some common elements.  Laws within Indigenous communities were typically non-prescriptive (somewhat flexible), non-adversarial (more collaborative than confrontational), and non-punitive (restitution/restoration vs punishment).

This perspective applied to laws in many areas of indigenous life such as:  marriage, adoption, treatment of wrongdoing (‘crimes’), trespassing, trade, and regulating resources.  The application of law within an Indigenous society extended throughout its geographic reach.  Once the boundaries of a nation were breached, then the laws of the next nation would apply - similar to modern laws within the geographic boundaries of modern nations.

Wrongdoing

One category of Indigenous law that existed was criminal law.  A crime is considered to be an act or an omission of an act that a person commits that is considered ‘wrong’ by society and whose remedy is found in the criminal justice system.  Indigenous societies didn’t use the term ‘crime’, but referred to an act like this as a ‘wrongdoing’.  A wrongdoing in Indigenous society was an act committed by an individual that violated the accepted standard of community behaviour.  When a wrongdoing was committed, it was seen as a breakdown in the relationship between the wrongdoer and the ‘victim’, or even the community as a whole.  The result of this act is that it created an imbalance in the community.  Therefore, to deal with the wrongdoing required the restoration of balance in the community.

Restoring balance

Restoring the balance in relationships and the community after a wrongdoing was committed required a collective effort.    The focus of this effort was the healing and repair of the relationship between all of the parties in the wrongdoing, with the elders taking a key leadership role.  First, the offender was required to admit guilt (no ‘not-guilty’ pleas here).  This forced the offender to acknowledge their actions and to be accountable to those whom they have hurt.  Then, once the offender has admitted guilt and a willingness to make things right, the next step was to apply restorative justice.  Restorative justice is a form of criminal sentencing, except that its focus is to restore the relationships between the offender (including their family) and the victim (including their family); as well as between the offender and the community as a whole.  Once a plan for restorative justice had been enacted and each party had accepted the resolution, then the offender would complete the restorative requirements.  After these requirements have been completed, the matter of the wrongdoing is said to be complete, and everyone in the community moves on with their lives.

Indigenous vs European Justice

There were also other ways in which Canada’s Indigenous population applied a very different approach to justice than did the European settlers.  The first such difference was in the use of prisons.  Europeans sentenced convicted criminal offenders to punishment in prisons; whereas Indigenous peoples used restorative justice as a means to resolve a ‘crime’.  The second key difference relates to the admission of guilt.  In European criminal legal matters most offenders would plead ‘not guilty’; whereas in Indigenous communities the offender was always expected to admit guilt.  Third, in the European legal system a convicted criminal would typically be sentenced to prison with no option to make restitution to the victim.  Indigenous societies didn’t have prisons, and instead relied on the application of restorative justice, often including restitution.  Finally, under the European system the family of the offender would also suffer.  Imagine the offender serving time in prison where they receive food and shelter; while their family was without the primary provider; and would thus likely suffer economic hardship as a result.  On the other hand, Indigenous communities required the inclusion of the offender’s family as part of the restorative process.  Although there is some evidence that early settlers accepted Indigenous laws and culture, there were vast differences in the approach to law and the legal functioning of European and Indigenous societies.

How Indigenous Law Were Communicated

Indigenous legal traditions, like their history, are communicated orally.  The laws were recalled from memory by the elders and/or wisdom keepers in the community, and were typically found in stories, songs, and ceremonies.  The narratives found in these held ‘truths’, but allowed the hearer to interpret the content to apply the truth to their own life and context.  This differed greatly from the European view of having laws that specifically stated, ‘don’t do this’.  However, how could the Indigenous leaders remember all of these laws, and the stories, songs, or ceremonies they were found in?  The answer is that they used a number of different memory devices such as:  wampum belts, masks, totem poles, medicine bundles, birch bark scrolls, petroglyphs, land forms, crests, etc.  The information on these memory devices helped to trigger the memories around the stories, songs, and ceremonies.

Summary of Canada's Indigenous Legal Traditions

It can be seen from the above discussion that the Indigenous legal traditions in place in Canada pre-contact were very different than those of early settlers.  As settlers learned more from Indigenous peoples, some aspects of their legal traditions were incorporated into Canada's evolving legal system.  For example, the use of restorative justice as an alternative to traditional criminal sentencing.  Canada's legal system was not 'born', but rather it 'evolved' from many different historical influences.