[MUSIC] Throughout history, people gathered together to create communities and societies, as they relied upon each other for companionship and survival. As people congregated together in the tens, hundreds, thousands, or even millions, moral codes and behavioural measures were needed. Without structured principles, conflict and disorder would be inevitable. Prior to Europeans arriving in North America, Indigenous communities had governing bodies to develop guidelines to co-exist peacefully and prosper within their environment. Indigenous legal traditions often differed depending on the stories, history, ceremony, and worldview of each community. Even today, Indigenous legal traditions are important aspects to the governance of communities. Indigenous people continue to be guided by their relationship between themselves and their environment. [MUSIC] >> A set of deeply rooted, historically conditioned attitudes about the nature of law, about the role of law in the society and the polity, about the proper organization and operation of a legal system, and about the way law is or should be made, applied, studied, perfected, and taught. [MUSIC] >> When the first Europeans arrived in North America, they recognized and followed the legal traditions and laws already set in place. The British, French, and Dutch all followed Indigenous ceremonies, laws, and practices during the first phase of contact and during the Peace and Friendship Treaty negotiations. Indigenous nations worked to maintain strong ties to other clans and communities, so there were common rules governing relationships. For example, laws were needed to regulate events such as marriage or adoption. Laws were created to protect community members from harm, settle disputes peacefully, regulate resources, and maintain order. While these legal systems were often unwritten, the laws were anchored into ceremonies, songs, dances, and oral narratives and passed down from one generation to the next. Indigenous laws are based on their worldviews and beliefs. Generally speaking, these are concerned with the goal of maintaining and restoring harmony within and between human and non-human relationships. This goal may be considered conservative in a sense that following nature's cycles and maintaining harmony in society are a means of ensuring a good life. Broad principles emerge from worldviews. One such principle is the prioritization of the collective. This means that principles maybe apply to specific incidents or come to to define specific legal customs, regulations, and rules, for example, the settlement of disputes or management of resources. Because the collective is so important, individuals are inclined to act with it in mind at the risk of their own well-being. Thus, individuals are more inclined to self-regulate and do not normally require a coercive legal system, as found in settler societies. Indigenous laws are based on the values of society as a whole. They take into account the best interests of all people. Consequences for breaking laws vary widely and depend on the circumstance and specific societal laws within each community. Nevertheless, often Indigenous laws were non-punitive and non-confrontational. They embodied restorative approaches that promoted value such as respect and consensus. For example, Nehiyawak, Dene, and Inuit would address any misbehaviour beginning with counselling for the perpetrator by the Elders or respected community members. If counselling didn’t work, the community would work together to shame the wrongdoer into behaving like a good person. If the offensive behaviour continued, the ultimate, although rare consequence, was banishment. Alone and without the protection of the group, this consequence was often a death penalty for the wrongdoer. Although the enforcement of Canadian laws has wreaked havoc on Indigenous legal traditions and customs, many of these traditional legal practices have survived. The laws of Indigenous societies are based on the cultural worldview that humans are as important as any other inhabitants of the planet, that humans must coexist with rather than assume authority and control over others. As well, Indigenous legal traditions have evolved over time, forming and reforming as needed and corresponding with the circumstances and challenges of the time. Canadian common and civil laws developed from the values and history of the European settlers. In addition to Christian beliefs, they're informed by a worldview embedded in binary thinking. For example, rather than prioritizing relationships between humans and the environment, a European worldview sets humans apart from the environment. This attitude suggests a certain orientation toward the use and exploitation of land. It is also a world view that emphasizes competition between individuals as opposed to working collectively. As a result, individuals may be less inclined to regulate their behaviour and so a more coercive legal system is needed. Well into the 19th century, the settler legal system continued to recognize Indigenous laws. But as European populations increased and settlements grew, settler law became the norm, and these alien laws and punishments were forced upon the Indigenous population. European laws, under settler legislation, displaced and or deemed illegal Indigenous systems of land, resources, political governance systems, and ceremonies. Indeed, the colonization of North America is very much a legal story involving both the imposition of settler laws and the attempt to erase Indigenous ones. As you will see detailed in the next lesson, Indigenous cultures have their own distinct set of laws and procedures for dealing with disruptions that are very different from those found in Western legal orders. There are many distinct understandings of law amongst Indigenous nations. The common law seeks to reflect this diversity in the formulation of legal concepts applicable to Indigenous peoples. This common law applies to Aboriginals, the Canadian legal term for Indians, Métis, and Inuit has four legal concepts that are important toward characterizing this area of law. The first idea is that an Aboriginal right is sui generis, a concept that declares that something is unique or of its own kind, in latin. This concept suggests that rights, such as Aboriginal rights, must be construed in a manner that reflects the form of entitlement in the cognate Indigenous legal system. Second, Aboriginal rights are collective rights. Although they may be exercised by a single person, they are held by the community rather than the individual. Third, Aboriginal rights incorporate duties that limit government powers or guides its actions. This duties include consultation, accommodation, honour of the Crown, and fiduciary duty. Finally, Aboriginal rights are uniquely situated in the Canadian Constitution. They are not Charter rights. They are special rights that apply only to Aboriginal peoples. Aboriginal Rights exist in Part Two of the Constitution, the Charter is in Part One. Aboriginal Law is the general term used to describe all of the law that pertains to Aboriginal peoples in Canada, such as Aboriginal Rights, the Indian Act, and other legal instruments. Indigenous legal traditions is a term sometimes used to refer to the Indigenous laws that continue to be practiced by Indigenous peoples, and that are the basis for sui generis Aboriginal rights. There are complexities to Indigenous legal traditions. We have discussed how Indigenous laws focus on maintaining a sense of peace and harmony within communities. This next session examines how Indigenous legal traditions are enforced when those laws are broken. One of the major differences that sets Indigenous law apart is that communities promote the use of a variety of systems including restorative justice and healing circles, rather than courtrooms and prisons. Elders play a significant role in the administration of justice and resolution of disputes. Restorative justice recognizes wrongdoing as impacting relationships. It therefore seeks to restore balance in the community after a wrong has occurred. It does so in two ways. First, through the healing and reparation of all parties involved and rehabilitation of the offender. As opposed to being focused on a punishment, this process forces offenders to be accountable to those they have hurt. Offenders are also expected to acknowledge their actions. In Canadian law, offenders who commit a violation are not required to incriminate themselves and can plead not guilty. Restorative justice requires offenders to plead guilty. This encourages a resolution between the victim and their family, as well as the offender and his or her conscience. Once the offender acknowledges their complicity in a crime, everyone can begin to accept and move towards resolution. This process also allows the victims to express their feelings. Second, as opposed to being adversarial, restorative justice brings everyone involved together to come to resolutions that allow people to move past transgressions in a mutually acceptable way. Once an offender has faced his or her circle of community members and reconciles the offending act, the obvious next step requires discussion about the consequences. As we will see in the next section, this process of holistic and values-based justice affects the consequences and may be distinguished from a more retribution or "just deserts" based approach. Within settler law, if a person is found guilty of a crime then the punishment takes the form of a fine, a jail sentence, or probation. As mentioned, within Indigenous legal traditions, an offender must concede and admit to the crime that he or she has committed in order for everyone involved to move forward in a positive way. The consequences for breaking the law vary from community to community. From an Indigenous perspective, law is about restoring balance. A punishment-based system under settler law seems like it lets the offender off the hook, effectively relieving them of guilt. The perception is that the offender goes to prison where they do not have to face the victim or their family, and they are fed and cared for. This system falters twice. First, the offender does not make any kind of direct restitution to the victim, and second, offenders’ families may suffer hardships while the offender is imprisoned, particularly if they were the primary provider. So, everyone but the offender is seen to pay the consequence of the crime. What happens instead? The consequences of committing crimes vary from situation to situation and community to community and have evolved over time. Forms of punishment are less fixed than Western law and focus mainly on the offender taking responsibility for their actions to work towards healing and recovery. Though there are many parallels in philosophy surrounding Indigenous law, the type and severity of the punishment can differ quite dramatically. Depending on the severity of the crime, an offender might face anything from monetary restitution to banishment, depending on their community. An example of this comes from a Dakota community where the father of a murderer gave his son to the family of the victim in order to assume the role of provider for the family and, in some way, restore what he had stolen away. As you have seen, Indigenous cultures place a lot of value on relationships. There is an expectation that efforts will be made to honour not only each other, but also the Earth and other inhabitants. Indigenous legal systems are generally non-prescriptive, non-adversarial and non-punitive. They tend to promote values such as respect, restoration, and consensus, are closely connected to the land, the Creator, and the community. To many people familiar only with settler justice systems, Indigenous laws are perceived more like customs because they are oral and not connected to state institutions. Prior to contact, many Indigenous laws were not written down. In some cases, they were visually illustrated, such as the case of the Iroquoian wampum belt. Indigenous laws were often passed down from one generation to the next through storytelling. Storytelling is a method of non-interference allowing elders to give advice to young people without directly telling them what to do. This strategy is their way of complying with the all important value of non-interference in the behaviour of others. Non-interference requires individuals to derive their own meaning from the stories based on their own experiences, and to thereby allow them to feel more connected to the outcomes or legal lessons. Indigenous societies understood that if people, even young people, were allowed to make their own decisions about behaviour, then they would be more likely to take responsibility for their actions. In addition, since wrong-doers cannot plead not guilty as one could in a Western courtroom, children grew up understanding that they would be held accountable for their behaviour. As people become aware of connections between their actions and the resulting impact on everything and everyone around them, the lessons become real for them. You can see how an actions equal consequence approach is closely tied to admitting guilt and a consequent willingness to make up for their acts through restorative justice. Historically, relationship building was also important to Western colonizers, but for different reasons. [MUSIC]
